Editorial Note

In the first week of June 1770, Adams accepted a seat in the Massachusetts House,
a step which at the time he considered “a devotion of my family to ruin and myself
to death” (JA, Diary and Autobiography, 3:294). The doubtful honor devolved upon him when James Bowdoin, chosen in May as a member
of the House from Boston, was elected to the Provincial Council, vacating his seat
in the lower chamber of the General Court. At a special town meeting on the morning
of 6 June, Adams scored an easy victory over John Ruddock, a wealthy businessman with
a strong following among “the Tradesmen and Mechanicks.” Adams made a brief acceptance
speech to the town meeting at Faneuil Hall and set out to take his place in the House
(same).

To assume his seat in the legislature, Adams was forced to journey across the Charles
River to Cambridge, for the General Court had been moved out of Boston to Harvard
College; its “removal” overshadowed every other issue in the first four months of
Adams' service. (See Donald C. Lord and Robert M. Calhoon, “The Removal of the Massachusetts
General Court from Boston, 1769–1772,” JAH, 55:735–755 [March 1969].) Gov. Francis Bernard had ordered the transfer in June
1769, acting on instructions from Secretary of State Hillsborough that he exert his
“constitutional Authority” to summon the General Court outside Boston in order to
rescue the legislature from the influence of the town's “licentious and unrestrained
Mob” (Hillsborough to Bernard, 30 July 1768, MHi:Transcripts of Instructions to Governors of Mass., 1768–1775). After Bernard's return
to England later that year, Lt. Gov. Thomas Hutchinson received somewhat ambiguous
instructions to continue the General Court at Cambridge only if developments arose
“of such a nature as to outweigh” two considerations that Hillsborough mentioned:
the continuation of troops in Boston and the behavior of its citizens (Hillsborough
to Hutchinson, 9 Dec. 1769, MHi:Transcripts of Instructions to Governors). In March 1770, Hutchinson called the General
Court into session at Cambridge. “Only from absolute Necessity,” the legislators agreed to proceed to business during that brief session, and they
refused to concede the right of the acting governor to change their meeting place
(Mass., House Jour., 1769–1770, p. 101).

When a new House was chosen in the annual elections of May 1770, Hutchinson continued
his policy. The House met in Cambridge on 31 May, and, although the representatives
agreed to elect a Council, opposi• { 239 } { 240 } tion to their “removal” hardened. Before Adams took his seat on 6 June, the House
had submitted a message challenging Hutchinson's right to remove the legislature,
and the Lieutenant Governor replied with a message asserting his legal and constitutional
right to hold the assembly where he wished. In a second exchange on 5 June, the House
demanded to see the instructions under which Hutchinson acted; he refused, both because
of the ambiguity of Hillsborough's instructions and because other instructions forbade
him to make such communications to the General Court (Mass., House Jour., 1770–1771, p. 15–16; Bailyn, Thomas Hutchinson, p. 172–173).

On the morning of 6 June, only a few hours before Adams joined the House, debate opened
on the report of a committee charged with considering “what may be proper further
to be done while the General Court is held out of the Town-House in Boston.” As soon
as Adams took his oath that afternoon, the House resumed debate, and Adams cast his
vote with the majority of 96 representatives who adopted the resolution that “it is
by no Means expedient to proceed to Business” while the assembly was “thus constrained”
to meet outside Boston (Mass., House Jour., 1770–1771, p. 16–21). Adams' appointment to the committee charged with preparing
an address to Hutchinson after the adoption of this resolution (see calendar entry
for 7 June, below) was the first indication of the part he would play in this controversy between
the House and the executive.

That drama continued throughout the summer. The first session of the House ended in
stalemate, and the legislature was prorogued on 25 June, only to be recalled for a
brief second session, 25 July-3 August (see calendar entry for 31 July, below). By 26 September, when the Lieutenant Governor recalled the Court for its
third session, he had received more specific instructions. Hutchinson's decision to
continue the General Court at Cambridge had been approved by his superiors, and he
was directed to maintain that policy unless it “should be attended with any such inconvenience
as may make it adviseable to hold it in some other place,” in which case he might
“remove it to any other Town in the Province except Boston” (Hillsborough to Hutchinson,
6 July 1770, MHi:Transcripts of Instructions to Governors).

In the third session of the General Court for 1770–1771, the opposition continued
the fight to maintain the House's refusal to do business outside Boston (see calendar
entries for 28 Sept., 4 and 5 Oct., below). But in a vote taken during Adams' absence from Cambridge on 9 October,
the House agreed to proceed to official duties “only from absolute necessity” (Mass., House Jour., 1770–1771, p. 88–91). On 16 October on the motion of James Warren, the House gave
leave to “Members who were absent at the Time [9 Oct.] when the Resolution pass'd to proceed to Business out of the Town-House in Boston
... to declare their Opinion thereon in the House.” Both Warren and John Adams took
advantage of this opportunity to express their opposition to the change of stance
in the House (same, p. 97–98).

Even as Adams protested the House retreat on the issue of “removal,” he was named
to committees which dealt with other conflicts between the General Court and the executive.
The old issue of the presence of British troops in Boston was revived in the dispute
over the command of Castle William (see calendar entry for 23 Oct., below). Hutchinson's refusal to disclose his instructions, and the style of enacting
provincial laws also drew Adams' attention that session (see calendar entries for
4 and 5 Oct. and 6 Nov., below). Committee appointments arising from the failure of the nonimportation
movement (see calendar entry for 16 Nov., below) and the appointment of a new agent in London (see calendar entry for 17 Dec., below) reflected broader aspects of the local conflicts.

The third session of the legislature ended on 20 November, and the General Court did
not meet again until 3 April 1771. Adams was relatively inactive in this fourth session;
his attendance was not recorded until 10 April, and his diary shows that he attended
no meetings after 17 April, nine days before the session's close (JA, Diary and Autobiography, 2:6–9). In this session, the most important committee on which Adams served was undoubtedly
that which drafted a bill for Hutchinson's salary as lieutenant governor (see second
calendar entry for 10 April, below). This bill forced the newly commissioned governor to confirm suspicions that
he expected support directly from the Crown, thus becoming financially independent
of the legislature.

Adams' service on committees in the House for 1770–1771 is described below in a list
of calendar entries for those committees for which there is some documentary record
of their work. (Committees about whose recommendations the record gives no hint and
those with ceremonial duties, such as the delivery of messages and votes, are not
described; for a check list including many of these other appointments, see JA, Works, 2:233–236, note.) The calendar form has been used because the absence of draft versions
of these reports prevents their attribution to Adams or to any of his colleagues.

Adams left no record of his work as a legislative draftsman in 1770–1771, although
he did recall that “this was to me a fatiguing Session, for they put me upon all the
Drudgery of managing all the disputes” (Diary and Autobiography, 3:295). In listing his published writings in 1783, he concluded with the remark that “these
. . . are all that I recollect to have ever written in America, excepting in a public
Character, as a Member of the Legislature of Massachusetts or of Congress, which it
is unnecessary to mention here” (letter to the Abbé de Mably, 17 Jan. 1783, LbC, Adams Papers). “Unnecessary” as such a list may have seemed to Adams at the time, it would have
been of more than passing interest to students of his career two centuries later.

Docno: ADMS-06-01-02-0082-0002

Author: Adams, John

Author: Adams, Samuel

Author: Hancock, John

Author: Warren, James

Author: Leonard, Daniel

Author: Massachusetts House of Representatives

Recipient: Hutchinson, Thomas

Recipient: Lieutenant Governor of Massachusetts Bay Colony

Date: 1770-06-07

Address to Lieutenant Governor Hutchinson Requesting the Return of the General Court
to Boston

7 June 1770. MS (M-Ar), in an unidentified hand. Printed: Mass., House Jour., 1770–1771, p. 22. Prepared by a committee appointed 6 June composed of Samuel Adams,
JA, { 242 } John Hancock, James Warren, and Daniel Leonard, and reported to the House “by Mr.
Adams.”

After the House adopted its resolutions of 6 June by which the members refused to
conduct business outside Boston, JA was named to this committee charged with preparing an address to Hutchinson, “praying
that he would be pleased to remove the General Assembly to the Town House in Boston”
(Mass., House Jour., 1770–1771, p. 16–22). The committee's draft address, submitted 7 June, was approved
by the House and delivered to Hutchinson by a committee of which JA was a member. The Address asserted that convening the General Court in Cambridge
was “a very great Grievance” and concluded with a request that Hutchinson return the
legislature to Boston because of the House's claim that “it is by no Means expedient”
to conduct business out of that town “and as there are Matters now lying before the
Assembly of very great Importance.”

Upon receipt of the House Address of 7 June (see preceding calendar entry), Lt. Gov. Hutchinson replied with a message which
justified the legality of removing the General Court to Cambridge and urged the need
to proceed with the session's business (Mass., House Jour., 23–24). The committee listed above was named “to state the Reasons of this House
for coming into a Resolution, That it is not expedient to proceed to the Business
of the Session while the General Assembly is held out of the Town-House in Boston; and also for adhering to the same.”

On 12 June the House adopted the committee's report, which recommended publication
of the House resolutions of 6 June along with “Reasons for adhering to said Resolutions”
which the Committee had prepared. The “Reasons” waived “at present . . . any further
Observations on the Legality” of holding legislative sessions out of Boston. Instead,
the report conceded the validity of prerogative when used “to the public Good,” but
attacked Hutchinson's policies as a misuse of power, unjustified by public need and
contrary to the public welfare. The “Reasons” answered each historical and legal precedent
Hutchinson had raised in his defense and closed with the claim that Hutchinson, not
the General Court, must bear the blame for any inconveniences suffered as a result
of the legislature's refusal to conduct business while sessions were held in Cambridge.
The report was adopted with only three dissenting votes (same, p. 31–32).

On 13 June the Representatives heard the Council's address to Hutchinson which reiterated
the determination of the House to conduct no business in Cambridge (same, p. 32–36).
Hutchinson's reply to the Council reaffirmed his position and was presented to the
House on 15 June. The committee described above was then named to prepare a message
to the Lieutenant Governor restating the lower chamber's decision “not to enter upon
Business out of the Town of Boston” and adding the prayer that if Hutchinson was “determined
not to remove the Assembly there, he would be pleased to give Leave to the Members
to retire to their respective Homes” (same, p. 37). Upon the adoption of the report,
JA was named to the committee which delivered the message to Hutchinson. It was not
until 25 June, however, that Hutchinson recessed the intransigent legislators (same,
p. 38, 47).

The second session of the General Court began 25 July with a speech from Hutchinson
to both houses. He pressed his arguments for maintaining the legislature in Cambridge
and urged House and Council to reconsider their decision not to proceed to business
until back in Boston (same, p. 58–61). The following day the House voted to adhere
to the resolution of 6 June (see calendar entry for 7 June, above) and to refuse to conduct business in Cambridge. The committee described above
was named to draft an answer to Hutchinson's speech and to notify him of the representatives'
decision to stand by their earlier policy. Before acceptance, the report was recommitted,
and when resubmitted it was debated paragraph by paragraph (Mass., House Jour., p. 62–63). On 3 August, despairing of any cooperation from the General Court, Hutchinson
prorogued the legislature to 5 September (same, p. 78).

The third session of the 1770–1771 General Court, continued by prorogations, met in
Cambridge on 26 September. The following day Hutchinson delivered a speech to the
Council and House meeting jointly in which he catalogued matters requiring the legislature's
attention and urged proceeding “with all Diligence” (same, p. 80–82). On 28 September,
Cushing “reported as their unanimous Opinion, That it is for the Interest of the Province,
that this House still adhere to their former Resolution, viz. That it is by no Means expedient to proceed to the public Business” (same, p. 82).
For House action on the report, see calendar entries for 4 and 65 October, below.

Docno: ADMS-06-01-02-0082-0007

Author: Adams, John

Author: Hancock, John

Author: Ingersoll, David Jr.

Author: Adams, Samuel

Author: Fuller, Samuel

Author: Massachusetts House of Representatives

Recipient: Hutchinson, Thomas

Recipient: Lieutenant Governor of Massachusetts Bay Colony

Date: 1770-10-04

Message to Lieutenant Governor Hutchinson on his Speech to the General Court

4 October 1770. MS not found. Printed: Mass., House Jour., 1770–1771, p. 86–87. Prepared by a committee appointed and reporting the same day
composed of John Hancock, JA, David Ingersoll Jr., Samuel Adams, and Abraham Fuller.

On 4 October, the House first considered the committee report of 28 September (see preceding calendar entry) which called for a reaffirmation of the assembly's
refusal to conduct business out of Boston. Instead of taking direct action on this
recommendation, the House named the committee listed above to prepare a message to
Hutchinson doing two things: seeking clarification of a section of his speech of 27
September, and demanding information concerning any recent instructions Hutchinson
had received concerning the site of General Court sessions. Clarification was sought
for Hutchinson's mention of “Affairs depending of a very interesting Nature, which
had not then [during the June and July sessions of the General Court] come to our Knowledge, and which may be determined before we can have another Opportunity
of acting upon them” if the legislature continued to refuse to conduct business. The
committee's report was approved by the House and answered by Hutchinson the same day
(Mass., House Jour., 1770–1771, p. 80, 86–87; see following calendar entry).

Committee Report on Lieutenant Governor Hutchinson's Message

5 October 1770. MS not found. Prepared by a committee appointed and reporting 5 October, composed of
John Murray, Joseph Gerrish, JA, Jedediah Prebble, and Samuel Adams. Murray reported the same day.

In his reply to the House Message of 4 October (see preceding calendar entry), Hutchinson claimed he was “not at Liberty” to communicate
the order in council of 6 July to which he had referred obliquely in his speech at
the opening of the session. He referred to the “entire Approbation” the Crown had
given to his transfer of the legislature to Cambridge and asserted that he was now
“restrained from removing it to Boston” (Mass., House Jour., 1770–1771, p. 87). After Hutchinson's message was read to the House on 5 October,
Murray reported the committee's “unanimous Opinion, That his Honor's said Message does not afford that Light which the House
requested in their Message to him; and that it appears to them from his Honor's Message,
that he was restrained by Instruction, from communicating the same to the House in a Parliamentary Manner” (same, p. 88).

JA was then named to a committee “to prepare an Address and Remonstrance accordingly,”
but the Journal records no presentation of any such “Address” in that session; indeed, the need for
such a protest was superseded by House action on 9 October (see Editorial Note, above).

Docno: ADMS-06-01-02-0082-0009

Author: Adams, John

Author: Danielson, Timothy

Author: Warren, James

Author: Massachusetts House of Representatives

Date: 1770-10-17

Committee Report on Naming a Day of Prayer and Humiliation

17 October 1770. MS not found. Draft prepared by a committee appointed 16 October composed of JA, Timothy Danielson, and James Warren. The committee's report, submitted the following
day, was recommitted and, at { 245 } the same time, JA was excused from the committee with Samuel Holten appointed in his place (Mass., House Jour., 1770–1771, p. 101–102).

The original committee was instructed to prepare an Address to Lt. Gov. Hutchinson,
“praying that he would be pleas'd to appoint a Day of solemn Prayer and Humiliation
to be observ'd throughout this Province” (same, p. 98). There is no way of knowing
how similar the committee's draft was to the address on this subject adopted by the
House on 23 October (same, p. 110). For Hutchinson's discussion of the political implications
of the House request, see Massachusetts Bay, ed. Mayo, 3:244.

Docno: ADMS-06-01-02-0082-0010

Author: Adams, John

Author: Adams, Samuel

Author: Warren, James

Author: Hancock, John

Author: Prescott, James

Author: Massachusetts House of Representatives

Recipient: Hutchinson, Thomas

Recipient: Lieutenant Governor of Massachusetts Bay Colony

Date: 1770-10-23

Message to Lieutenant Governor Hutchinson on the Command of Castle William

23 October 1770. MS not found. Printed: Mass., House Jour., 1770–1771, p. 111. Prepared by a committee appointed 17 October composed of Samuel
Adams, JA, James Warren, John Hancock, and James Prescott (same, p. 101).

In his speech at the opening of the General Court's third session (27 Sept.), Hutchinson
announced that provincial troops had been withdrawn from Castle William and, by order
of the Crown, replaced by British regulars (same, p. 81). The House expressed indignation
at the “very false Representations” that presumably had persuaded the King to take
this step and demanded to know whether Hutchinson still commanded the post or whether
Castle William had been transferred from civilian to military jurisdiction (same,
p. 94–95).

When Hutchinson's reply to the House (17 Oct.) did not satisfy the representatives,
they named the committee described above. The committee's report proposed a message
demanding that Hutchinson “in an explicit Manner assure us, Whether you still hold
the Command of his Majesty's Castle-William.” Hutchinson's reply is printed at p.
112–113.

After voting to conduct business despite their removal to Cambridge, members of the
House added the phrase “in general court assembled” to the usual form for the authority
under which provincial statutes were enacted. The committee described above was appointed
immediately after the House received Hutchinson's protest that the “Stile of enacting”
new laws would force him to violate instructions of thirty years' standing which required
the governor to allow only the form “by the Governor, Council and House of Representatives” (same, p. 128). The committee's report of 6 November declared that the additional
phrase was “of Substance, and necessary,” but the House did not press the matter.
As Hutchinson pointed out, the representatives “sent for their bills from the council,
took out the exceptionable words, and omitted them in all the other bills passed in
the session” (Massachusetts Bay, ed. Mayo, 3:226).

JA himself referred to the matter as a “laboured controversy,” which he mentioned in
passing in his Autobiography only as the inspiration for Governor Shirley's remark
on “this brace of Adams's” who served in the House in 1770 (Diary and Autobiography, 2:54–56, 3:295). For a discussion of the usage of the controversial phrase in earlier provincial
statutes, see Mass., Province Laws, 5:139–140.

Committee Report on the State of the Province

16 November 1770. MS not found. Printed: Mass., House Jour., 1770–1771, p. 164. Prepared by a committee appointed 16 October composed of Thomas
Cushing, Samuel Adams, Joseph Hawley, JA, John Hancock, John Worthington, John Pickering Jr., James Warren, and John Whitcomb
(same, p. 97).

In its report the committee dealt with the colony's economic problems, recently aggravated
by the Boston merchants' vote to end the nonimportation of most British goods (for
this vote of 12 Oct., see Massachusetts Gazette, 15 Oct.). The House adopted the committee's resolutions calling on members of that
chamber to “use their utmost Endeavors, and enforce them [their fellow citizens] by their Example, to discourage Prodigality and Extravagance” and “to discourage
the Use of Foreign Superfluities, and to promote our own Manufactures in the several
Towns we represent.”

Pursuant to these resolutions, Thomas Cushing, John Hancock, William Heath, Samuel
Adams, JA, Ebenezer Thayer, Samuel Bacheller, Samuel Howe, and Benjamin White were appointed
“to prepare a Plan for the Encouragement of Arts, Agriculture, Manufactures and Commerce,
and report at the next Session” (Mass., House Jour., 1770–1771, p. 164). No plan for the encouragement of manufactures was introduced
at the fourth session of the General Court (April 1771), but see JA, Diary and Autobiography, 2:2, for an account of a meeting on 7 or 8 February 1771 of the committee charged with
drawing up this plan.

An Act for the Limitation of Personal Actions

20 November 1770. MS, engrossed copy, signed by Hutchinson (M-Ar). Printed: Mass., Province Laws, 5:109–111. Prepared by a committee appointed 16 October composed of JA, John Worthington, and Joseph Hawley (Mass., House Jour., 1770–1771, p. 98).

The need to regularize limitations on suits at law was one of the “important Matters”
cited by Hutchinson in his plea to the House to resume business in June (same, p.
23). Legislation limiting such actions had been passed in earlier years, but had been
“repeatedly suspended before it could have any operation” (Hutchinson to Board of
Trade, 21 Dec. 1770, Mass., Province Laws, 5:143; a list of earlier statutes on limitations of actions is printed at p. 109).
The committee was ordered to consider “all the Laws relating to the Limitation of
Actions, reduce them to one Bill, and report.” In the absence of earlier draft versions
it is impossible to assess the contributions made by the House committee.

Message to Lieutenant Governor Hutchinson on the Command of Castle William

MS not found. Printed: Mass., House Jour., 1770–1771, p. 171–172. Prepared by the committee on the state of the province, appointed
16 October (see calendar entry for 16 Nov., above).

After its exchange of messages with Hutchinson on the Castle William controversy in
mid-October (see calendar entry for 1723 Oct., above), the House ordered the committee on the state of the province to take affidavits
from Capt. John Phillips, former commander of the fort, and from Stephen Hall, former
chaplain of the post (Mass., House Jour., 1770–1771, p. 145). Hutchinson recalled that the House “gave him notice by a committee,
that they should proceed to examine witnesses present at the transfer [of Castle William], and that he might be present at the examination, if he thought fit. This he did
not think in character, but did not think proper to interrupt them” (Massachusetts Bay, ed. Mayo, 3:224).

The committee report based on these investigations was presented in the form of a
message to Hutchinson. As adopted by the House on 20 November, the message remonstrated
against the Lieutenant Governor's having, “merely in Obedience to Instructions,” surrendered
command of Castle William, “a Power . . . which by the Charter is vested in [him] for the Safety of the People” and prayed that Hutchinson would “take effectual Measures,
that the Power of garrisoning his Majesty's Castle-William, may be restored to the
Governor of the Province to whom it by Charter it belongs.”

Committee of Correspondence to Benjamin Franklin

Boston, 17 December 1770. RC (MeHi). Printed: Franklin, Papers, 17:301–304. Prepared by a “Committee of Correspondence” appointed 7 November composed
of Thomas Cushing, John Hancock, Stephen Hall, Samuel Adams, and JA. Although “Boston” was used in the date line, the House was still meeting in Cambridge.

This committee was “to communicate such Intelligence as may be necessary, to the Agent
and others in Great-Britain; and also to the Speakers of the several Assemblies thro'
the Continent, or to such Committee of Correspondence as they have, or may appoint”
(Mass., House Jour., 1770–1771, p. 139). The first letter sent to Franklin, the newly appointed agent
in London for the House, is the only one of the committee's letters known to survive.

Committee Report on the Petition of Gyles Merrill

10 April 1771. MS not found. Prepared by a committee appointed and reporting the same day, composed
of JA, Samuel Batcheller, and John Noyes.

Gyles Merrill, pastor of the First Church of Plaistow, N.H. (formerly the Second Church
of Haverhill, Mass.), sought the legislature's consent to an offer from the Haverhill
parish to grant him his parsonage in fee simple. The committee's report, described
as recommending “That a Bill be bro't in to enable the North Precinct in Haverhill,
to grant the Premises described in the Petition . . . notwithstanding any former Vote
or Votes of the Town or Proprietors of Haverhill,” was approved. Batcheller was { 248 } ordered to prepare the bill (Mass., House Jour., 1770–1771, p. 201). For the bill adopted in response to the committee's recommendations,
see Mass., Province Laws, 5:121, with Merrill's petition at p. 145–146.

Docno: ADMS-06-01-02-0082-0017

Author: Adams, John

Author: Hancock, John

Author: Gallison, John

Author: Massachusetts House of Representatives

Date: 1771-04-10

A Bill for Granting Support to Lieutenant Governor Hutchinson

10 April 1771. MS (P.R.O.: Colonial Office, 5:760). Prepared by a committee appointed and reporting the same
day, composed of John Hancock, JA, and John Gallison.

The committee listed above was to prepare a bill for a grant of £506 to Hutchinson
for his services as lieutenant governor. A second committee, of which JA was not a member, was appointed to draft a bill for Hutchinson's support as governor,
an appointment which he had announced to the General Court on the opening day of its
fourth session, 3 April. Both bills were passed on 10 April, and JA served on the committees which delivered them to the Council that day (Mass., House Jour., 1770–1771, p. 200–202). Admitting that Parliament had made provision “for the Support
of the Civil Government in the Colonies as His Majesty shall judge Necessary” (same,
252), Hutchinson delayed action on the engrossed bills and finally disallowed them
(Hutchinson to Hillsborough, May 1771, MHi:Hutchinson Lb Transcripts, 27:273–276).

Boston Town Committee Report on a Society to Promote the Arts, Agriculture, Manufactures,
and Commerce

Boston, 29 September 1770. MS not found. At the Boston Town Meeting of 20 Sept., JA was named to a committee including John Hancock, Thomas Cushing, Samuel Adams, Thomas
Boylston, Joseph Warren, and William Dennie to consider the “Proposal of a number
of Inhabitants for forming a Society in order to promote Arts, Agriculture, Manufactures
and Commerce in this Province.” The town meeting records for 29 Sept. show that “the
Committee . . . not being present their Report which had been lodged with the Town
Clerk, was not read, but the consideration { 249 } thereof referred to the Adjournment” (Boston Record Commissioners, 18th Report, p. 37–38). No evidence of further consideration of the report has been found.

Docno: ADMS-06-01-02-0086

Author: Adams, John

Recipient: Lowell, John

Date: 1770-12-15

To John Lowell?

[dateline] Decr. 15. 1770

[salute] Dr sir

Being generally Speaking a son of Liberty, notwithstanding the Cloud of Toryism that
has lately, you know, passed over me,1 a Number of Gentlemen have retain[d] me, with you, in Defence of that great and inestimable Right, Liberty and Priviledge
by Charter of digging Clams upon the Ipswich Clam Banks. The Proprietors of Ipswich
have sued Varrill before a Justice &c.—Varrill2 will shew you the Copies. Will it not be best (if the Ptfs should enter) for [unknown amount of text missing][the Propri]etors will bring the next Action before the Superiour Court and have this great constitutional
Question decided at last by the Kings Bench.—I wish you a pleasant and profitable
Court and am with great Esteem your Brother3

[signed] John Adams

RC (NNPM). MS mutilated; only the upper portion of the sheet remains, with the opening sentences.
The closing lines and signature are on the verso.

1. Presumably a reference to his unpopularity for defending the soldiers charged with
the Boston Massacre.

2. No case involving “Varrill” is recorded in JA's docket book for 1770–71.

3. That is, cocounsel. John Lowell may be meant, for he served in this capacity in Patch
v. Herrick, which involved litigation over the Ipswich clam bank (JA, Legal Papers, 2:4–9).

Docno: ADMS-06-01-02-0087

Author: Adams, John

Date: 1771-04-22

Announcement of Changes of Address of John Adams' Law Office

[dateline] [Boston, 22 April 1771]

John Adams,

Notifies the Removal of his Office to a Room in Queen-Street, in the House of Mr.
John Gill, within a few Steps of the New Court-House, but on the opposite Side of
the Street.1

Reprinted from (Boston Gazette, 22 April 1771).

1. The transfer of JA's law office was probably dictated by the Adams family's return to Braintree earlier
this month. Before becoming Gill's tenant, JA had apparently maintained his office in the quarters “near the steps of the Town
{ 250 } house Stairs” mentioned in his account of the events of March 1770 (JA, Legal Papers, 1:lxv–lxvi). Gill, copublisher of the whig Boston Gazette, was a grateful former client, whom JA had successfully represented in 1768 and 1769 in the printer's suits against John
Mein (same, p. 151–157). This Queen Street law office was used until Nov. 1772, when JA moved into Shrimpton Hunt's house, also on Queen Street, which he had purchased in
August.

Docno: ADMS-06-01-02-0088

Author: Macaulay, Catharine

Recipient: Adams, John

Date: 1771-07-19

From Catharine Macaulay

[dateline] London July 19. 1771

[salute] Sr

A very laborious attention to the finishing the fifth vol of my history of England
with a severe fever of five months duration the consequence of that attention has
hitherto deprived me of the opportunity of answering your very polite letter of August
9. 1770.1

Your observations of the history of England are highly favorable and flattering to
the Author but you must give me leave to say that on the principle of having a right
to treat your own performances with freedom you have not done common justice to the
work entitled a Dissertation on the Common and the feudal laws.2

I am really very much concerned to hear that you labor under the heavy misfortune
of a weak and infirm state of health. I simpathise with you in body and mind having
rarely any alternative from either labor or pain.

A correspondence with so worthy and ingenious a person as your self Sr will ever be
prised by me as part of the happiness of my life.

I wish to your numerous family continued health and prosperity and to you every other
blessing which can ballance the unavoidable evils attending our human existence.

[salute] I am Sr with esteem regard and gratitude Your most Obed And most obliged humble Servt

1. JA's letter to Mrs. Macaulay is printed in JA, Diary and Autobiography, 1:360–361, with a sketch of Mrs. Macaulay in a note at p. 361. The fifth volume of her History of England from the Accession of James I to that of the Brunswick line, London, 1763–1783, appeared in 1771 (DNB).

2. JA had opened his correspondence with Mrs. Macaulay when he learned of her favorable
reaction to his “Dissertation.” Mrs. Macaulay's error in citing the title was entirely
her own; the essays were never published under that name (see “A Dissertation on the
Canon and the Feudal Law,” May–21 October 1765, above).

From Nathaniel Freeman

Sandwich, 4 October 1772. RC (MiU-C); addressed to John Adams in Boston; endorsed. Freeman notifies Adams that he is
appealing a case to the Superior Court and urges Adams, who has been his attorney,
not to “take up against me.” Adams' one-sentence reply that he is “ready to engage
for him” is on the verso.

To Catharine Macaulay

Editorial Note

The issue addressed by John Adams and William Brattle in this exchange in the pages
of the Boston Gazette was a narrow one: the degree to which English judges had historically been dependent
upon the Crown and its ministers. But this question arose as part of a broader debate
in contemporary Massachusetts politics: the provision for Bay Colony judges in the
royal civil list. The General Court had registered strong protests in 1771 when it
became known that the governor was to receive his salary from the Crown rather than
from the provincial legislature (see Adams' Service in the House, 7 June 1770–16 April 1771, 2d calendar entry for 10 April 1771, above). Opposition to this extension of the civil list, however, was comparatively
mild, for, as one historian has remarked, “it was at least logical that the King's
servant be paid by the King” (Brown, Revolutionary Politics, p. 52). That moderation ended when Boston received reports in the fall of 1772 that
superior court judges were to get crown salaries as well.

The Boston town meeting took the lead in investigating these reports and exploiting
them as a political issue. After vain attempts to obtain clarification of the rumors
from Governor Hutchinson, the town met on 2 November and named a committee of correspondence
“to communicate { 253 } their Sentiment to other towns” (Boston Record Commissioners, 18th Report, p. 93; for an able summary of the exchanges between the town meeting and Hutchinson,
Oct.–Nov. 1772, see Brown, Revolutionary Politics, p. 48–57; see also Editorial Note, The Constitutional Debate between Thomas Hutchinson and the Massachusetts House,
26 Jan. – 2 March 1773, below). The committee's work bore fruit in Boston's adoption
of two reports on rights and an accompanying letter for other Massachusetts towns,
all bound together as The Votes and Proceedings of the Town of Boston. This pamphlet soon brought action in Cambridge.

A number of freeholders petitioned the Cambridge selectmen for a town meeting at which
the issue of crown salaries for the judges might be discussed. The warrant for the
meeting on 14 December included an article responding to the petition. When the town
met, Maj. Gen. William Brattle, widely regarded as a staunch defender of colonial
liberties, was elected moderator.

At the meeting Brattle displayed a startling political about-face. A wealthy landowner
who had dabbled in medicine, theology, and the law before winning recognition as a
military administrator, Brattle emerged that day as a defender of crown measures.
(For a sketch of Brattle, see Sibley-Shipton, Harvard Graduates, 7:10–23.) More than forty years later, Adams described him as one who, before the
Cambridge meeting of December 1772, “had acquired great popularity by his zeal, and
I must say, by his indiscreet and indecorous ostentation of it, against the measures
of the British government.” He ascribed Brattle's conversion to Hutchinson, and especially
to Jonathan Sewall (to Jedediah Morse, 22 Dec. 1815, JA, Works, 10:194).

Although Adams' explanation of the General's behavior may well be oversimplified,
there is no doubt that a conversion had taken place. Brattle used all his considerable
authority and influence to discourage discussion of the judges' salaries at the Cambridge
meeting. When the letter from the Boston town meeting was read, he objected to taking
any action on the communication, for the article in the warrant had not specifically
mentioned the letter from Boston.

Brattle's objections were not limited to technicalities. He argued that the town would
be “too premature in acting upon this matter at present” and that the next packet
from England would probably “give us more light in the affair.” As it was, he continued,
“no man in the province could say whether the salaries granted to the judges were
durante bene placito, or quamdiu bene se gesserint, as the judges of England have their salaries granted them.” Brattle told the meeting
that he “supposed” the salaries were to be granted in the latter fashion, that is,
during good behavior, and argued that this would make the judges “independent both
upon the king and the people.” He was “very far from thinking there was any necessity
of having quamdiu bene se gesserint in their commissions; for they have their commissions now by that tenure as truly
as if said words were in,” He closed his arguments for accepting the new method which
he sup• { 254 } posed would govern the judges' salaries by remarking “that by the charter and common
law of England, there is no necessity of their having any commission at all; a nomination
and appointment recorded is enough; nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it”
(Brattle to the Massachusetts Gazette, 16 Dec.; JA, Works, 3:516–517).

Brattle's harangue had little effect. The town appointed a committee of correspondence
and adopted instructions to the Cambridge representative, Thomas Gardner, which described
the judges' salaries as “so great a Grievance, especially when added to the many other
Grievances we have been so long groaning under, as to be almost insupportable” (Boston Gazette, 21 Dec.).

Here the matter might have ended had not Brattle decided to live up to his promise
to protest the illegality of any action on the Boston letter. Within days of the Cambridge
meeting he carried the dispute to the press, summarizing his town meeting oration
in a letter dated 26 December and published in the Massachusetts Gazette of 31 December. When his position was questioned in the Boston Gazette, Brattle replied in the Massachusetts Gazette on 7 January, offering to answer those who had leisure to dispute the line of argument
he had laid down.

In his autobiographical writings, Adams offers two slightly different versions of
why he decided to enter the dispute. In his Diary, he mentions Brattle's publication
of 31 December as one of the topics of conversation for Adams' friends the next evening.
Adams neglected his Diary for the next nine weeks, and on resuming on 4 March, he
explained: “The two last Months have slided away. I have written a tedious Examination
of Brattle's absurdities.” Adams described Brattle's pieces in the newspapers of 31
December and 7 January as “vain and frothy Harrangues and Scribblings,” which “would
have had no Effect upon me, if I had not seen that his Ignorant Doctrines were taking
Root in the Minds of the People” (Diary and Autobiography, 2:77–78). This explanation, which implies that Adams did not begin drafting his reply to
Brattle until he had seen the Massachusetts Gazette of 7 January, seems unlikely since Adams' first essay appeared in the Boston Gazette on 11 January.

Adams had more personal reasons for accepting Brattle's challenge. During the Cambridge
meeting, Adams recalled, Brattle had said the complete independence of the judges
“I averr to be Law, and I will maintain it, against any Body, I will dispute it, with
Mr. Otis, Mr. Adams, Mr. John Adams I mean, and Mr. Josiah Quincy. I would dispute
with them, here in Town Meeting, nay, I will dispute it with them in the Newspapers”
(same, 2:78).

In his Autobiography, Adams recalled that perhaps he would have said nothing publicly
about Brattle's argument had Brattle not “the Week before . . . challenged me by name,
to dispute the point with him” (same, 3:297). This version, which suggests that Adams accepted the challenge as soon as he saw
Brattle's essay in the Massachusetts Gazette of 31 Decem• { 255 } ber, is more credible. Of course, Adams could have completed two or more of his essays
before the first was printed in the Gazette; any more precise dating is impossible considering the complete lack of manuscript
versions of Adams' essays and of any dates appended to the published letters. All
of Adams' contributions printed below are taken from the Gazette and are given the dates on which they appeared in that paper.

Before he had answered Brattle to his own satisfaction, Adams produced seven learned
essays. These appeared in weekly installments along with Brattle's only contribution
to the debate he had courted so eagerly. Probably the General despaired of defending
himself against Adams' “torrents of law, records and history.” Adams himself did not
know whether Brattle's failure to write more rose “from Conviction, or from Policy,
or Contempt” (same, 2:78). And although Adams dismissed his own effort as a “tedious
Examination,” one suspects that he relished the “delightful work of quotation,” at
times losing sight of his opponent in his enthusiasm for exhausting every legal consideration.

These essays, published without title in 1773, appear in Charles Francis Adams' edition
of his grandfather's works under the title “On the Independence of the Judiciary”
(JA, Works, 3:519–574). John Adams himself, however, referred to them consistently as being
“On the Independence of the Judges” (to Cotton Tufts, 3 May 1789, MH:Schaffner Collection; Diary and Autobiography, 3:298). The present editors have chosen to revive Adams' title.

More accurately, Adams should have called his essays “On the Dependence of the Judges,”
for he employed English history and legal treatises to demonstrate that the celebrated
“independence” of the judiciary was a comparatively recent innovation, resting on
limited statute law rather than on common law or time-honored tradition, as Brattle
had claimed. Adams left his readers to draw their own conclusions about the dangers
of such a system.

These lessons were all the more obvious to his audience since Adams' newspaper series
coincided with a full-scale debate between the Governor and the House on constitutional
issues involving the judiciary. In the weeks in which he penned the concluding numbers
of his series, he was engaged as well, but not publicly, in drafting the central portions
of the replies of the House to Governor Hutchinson on the broader issues raised by
the prospect of crown salaries for the judges (see 26 Jan. – 2 March 1773, below). These newspaper pieces, to which Adams signed his name, are the first public
papers since “Sui Juris” (23 May 1768, above) which he is known to have composed as an individual, rather than as a member
of a public committee.

The moral of these essays, the need for a judiciary whose independence was guarded
from changing public opinion and legislative whim, proved clearer to Adams than to
his countrymen. Shortly after taking office as vice president, Adams suggested that
his letters to Brattle be republished. Sixteen years after accepting the General's
challenge, Adams { 256 } reflected ruefully, the essays “contain Information that is much wanted. The Constitutional
learning on that head is very little known, excepting to those few who read those
Letters in their Season. Younger Gentlemen and the rising Generation, know nothing
of it, and nothing is of more Importance and Necessity, in order to establish the
New Government. . . . Many of the States have their Judges elective, annually, an
awful defect in any Constitution” (to Cotton Tufts, 3 May 1789, MH:Schaffner Collection).

Docno: ADMS-06-01-02-0096-0002

Author: Adams, John

Recipient: Boston Gazette (newspaper)

Date: 1773-01-11

I. To the Boston Gazette

[dateline] [Monday, January 11, 1773]

[salute] To the PRINTERS.

GENERAL BRATTLE, by his rank, station and character, is intituled to politeness and
respect, even when he condescends to harrangue in town-meeting, or to write in a news-paper:
But the same causes require that his sentiments when erroneous and of dangerous tendency,
should be considered, with entire freedom, and the examination be made as public,
as the error. He cannot therefore take offence at any gentleman for offering his thoughts
to the public, with decency and candor, tho' they may differ from his own.

In this confidence, I have presum'd to publish a few observations, which have occured
to me, upon reading his narration of the proceedings of the late town meeting at Cambridge.
It is not my intention to remark upon all things in that publication, which I think
exceptionable, but only on a few which I think the most so.

The General is pleased to say, “That no man in the province could say whether the
salaries granted to the Judges were durante bene placito, or quam diu bene se gesserint, as the Judges of England have their salaries granted them.” “I supposed the latter,
tho' these words were not expressed, but necessarily implied.” This is said upon the
supposition, that salaries are granted by the crown to the judges.

Now, it is not easy to conceive, how the General or any man in the province could
be at a loss to say, upon supposition that salaries are granted, whether they are
granted in the one way or the other. If salaries are granted by the crown, they must
be granted, in such a manner as the crown has power to grant them. Now it is utterly
deny'd, that the crown has power to grant them, in any other manner than durante bene placito.

The power of the crown to grant salaries to any judges in America is derived solely
from the late act of parliament, and that gives no { 257 } { 258 } power to grant salaries for life, or during good behaviour.1 But not to enlarge upon this at present.

The General proceeds. “I was very far from thinking there was any necessity of having
quam diu bene se gesserint in their commissions: For they have their commissions now
by that tenure, as truly as if said words were in:”

It is the wish of almost all good men, that this was good law. This country would
be forever obliged to any gentleman who would prove this point from good authorities,
to the conviction of all concerned in the administration of government, here and at
home. But I must confess that, my veneration for General Brattle's authority, by no
means prevails with me, to give credit to this doctrine. Nor do his reasons in support
of it, weigh with me, even so much as his authority. He says, “What right, what estate
vests in them, (i.e. the Judges,) in consequence of their nomination and appointment,
the common law of England, the Birth-right of every man here, as well as at home,
determines, and that is an estate for life, provided they behave well:” I must confess
I read these words with surprize and grief. And the more I have reflected upon them
the more these sentiments have increased in my mind.

The common law of England is so far from determining, that the Judges have an estate
for life in their offices, that it has determined the direct contrary. The proofs
of this are innumerable and irresistable. My Ld. Coke in his 4th institute,2 74, says, “Before the reign of E. 1. the chief justice of this court, was created
by letters patents, and the form thereof (taking one for all) was in these words.

And my Lord Coke says, afterwards in the same page, “King E. I. being a wise and prudent
prince, knowing that cui plus licet quam par est plus vult quam licet (as most of
the summi justiciarii did) made three alterations, 1. By limitation of his authority.
2. By changing summus justiciarius to capitalis justiciarius. 3. By a new kind of
creation, viz. by writ, lest if he had continued his former manner of creation, he
might have had a desire of his former authority, which three do expressly appear by
the writ, yet in use, viz. Rex, &c. E.C. militi salutem, sciatis quod constitumus
vos justiciarium nostrum { 259 } capitalem, ad placita coram nobis tenenda, durante beneplacito nostro teste, &c.” Afterwards in the same page Ld. Coke observes, “it is a rule in law,
that ancient offices must be granted in such forms and in such manner, as they have
been used to be unless the alteration were by authority of parliament. And continual
experience approveth, that for many successions of ages without intermission, they
have been, and yet are called by the said writ.” His Lordship informs us, also in
the same page, that “the rest of the Judges of the King's bench have their offices
by letters patent in these words. Rex omnibus ad quos presentes literae pervenient,
salutem, sciatis quod constituimus dilectum et fidelem Johannem Doderidge militem
unum justiciariorum ad placita coram nobis tenenda durante beneplacito, nostro, teste, &c.”

His Lordship says indeed, from Bracton, that “these Judges are called Perpetui by
Bracton, because they ought not to be removed without just cause.” But the question
is not what the Crown ought to do, but what it had legal power to do.

The next reason given by the General in support of his opinion, is that these points
of law have been settled and determined by the greatest sages of the law formerly
and more lately. This is so entirely without foundation, that the General might both
with safety and decency be challenged, to produce the name of any one sage of the law ancient or modern, by whom it has
been so settled and determined, and the book in which such determination appears.
The General adds, “It is so notorious that it becomes the common learning of the law.”
I believe he may decently and safely be challenged again; to produce one Lawyer in this country, who ever before entertained such an opinion,
or, heard such a doctrine. I would not be misunderstood; there are respectable Lawyers,
who maintain that the Judges here hold their offices during good behaviour; but it
is upon other principles, not upon the common law of England. “My Lord chief justice
Holt settled it so, not long before the statute of William and Mary, that enacts that
the words quam diu bene se gesserint, shall be in the Judges Commissions.” And afterwards
he says, that “the commissions as he apprehends, were without these words inserted
in them, during the reigns of King William, Queen Mary and Queen Ann.”

This I presume must have been conjectured from a few words of Lord Holt in the case
of Harcourt against Fox, which I think are these. I repeat them from memory, having
not the book before me at present. “Our places as judges are so settled, determinable
only upon misbehaviour.”3

Now, from these words I should draw an opposite conclusion from { 260 } the General, and should think that the influence of that interest in the nation which
brought King William to the throne, prevailed upon him to grant the commissions to
the Judges, expressly during good behavior. I say, this is the most natural construction,
because it is certain, their places were not at that time, viz. 5 Wm. and Mary, determined
by an act of parliament to be determinable only upon Misbehavior, and it is as certain,
from Lord Coke, and from all history, that they were not so settled by the common
law of England.

However, we need not rest upon this reasoning, because we happen to be furnished with
the most explicit and decisive evidence, that my conclusion is just, from my Lord
Raymond.4 In the beginning of his second volume of reports, his lordship has given us a list
of the chief officers in the law at the time of the death of King William the third
8 March 1701, 2. And he says in these words, that “Sir John Holt, knight, chief justice
of the King's bench, holding his office by writ, though it was quam diu se bene gesserint, held it to be determined by the demise of the King, notwithstanding the act of 12
& 13 Will. 3d.5 And therefore the Queen in council gave orders, that he should have a new writ, which
he received accordingly, and was sworn before the lord keeper of the great seal the
Saturday following, viz. the 14th of March, Chief Justice of Kings Bench.” —From this
several things appear,

1. That General Brattle is mistaken in apprehending that the Judges commissions were
without the clause quam diu bene se gesserint, in the reign of King William and Queen Mary, and most probably also in the reign
of Queen Ann, because, it is not likely that Lord Holt would have accepted a commission
from the Queen during pleasure, when he had before had one from King William during
good behaviour. And because if Queen Ann had made such an alteration in the commission,
it is most likely Lord Raymond would have taken notice of it. 2. That Lord Holt's
opinion was, that by common law he had not an estate for life in his office, for if
he had, it could not expire on the demise of the King. 3. That Lord Holt did not think
the clause in the statute of 12 & 13 Wm. 3. to be a declaration of what was common
law before, nor in affirmance of what was law before, but a new law and a total alteration
of the tenure of the Judges commissions, established by parliament, and not to take
place till after the death of the Princess Ann. 4. That in Lord Holt's opinion it
was not in the power of the Crown, to alter the tenure of the Judges commissions,
and make them a tenure for life determinable only upon { 261 } misbehaviour, even by inserting, that express clause in them, quam diu se bene gesserint.

I have many more things to say upon this subject, which may possibly appear some other
time.

[salute] Mean while I am, Messi'rs Printers, Your humble Servant,

[signed] JOHN ADAMS

1. The preamble to the Townshend Revenue Act of 1767 stated explicitly that the revenues
raised in America under this statute would be used “for making a more certain and
adequate Provision for defraying the charge of the Administration of Justice, and
the Support of Civil Government, in such Provinces where it shall be found necessary”
(7 Geo. III, ch. 46).

2. Sir Edward Coke's Institutes of the Lawes of England is represented in JA's library by volumes from two editions. The first and fourth Institutes in his set are from the edition printed in London, 1628, while the second and third
are from the 6th edition, London, 1681 (Catalogue of JA's Library).

3. This passage from the opinion of Chief Justice Sir John Holt (1642–1710) appears in
Sir Bartholomew Shower, Reports of Cases Adjudged in the Court of King's Bench, in the Reign of ... King William III, with Several Learned Arguments, London, 1708, 1:535. The case of Harcourt v. Fox is discussed by JA at length in No. VI, below.

4. Sir Robert Raymond, 1st Baron Raymond, Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas,
in the Reigns of the Late King William, Queen Anne, King George the First, and King
George the Second, 2d edn., 3 vols., London, 1765, 2:747. Entered in Catalogue of JA's Library.

5. That is, the Act of Settlement of 12 June 1701, 12 and 13 Wm. III, ch. 20.

Docno: ADMS-06-01-02-0096-0003

Author: Adams, John

Recipient: Boston Gazette (newspaper)

Date: 1773-01-18

II. To the Boston Gazette

[dateline] [Monday, January 18, 1773]

[salute] To the PRINTERS,

It has been said already, that the common law of England has not determined the judges
to have an estate for life in their offices provided they behaved well. The authorities
of Lord Coke and Lord Holt have been produced, relative to the judges of the King's
bench. And indeed authorities, still more ancient than Coke might have been adduced.
For example, the learned Chancellor Fortescue, in his book in praise of the laws of
England,1 1 chap. 51. says, “When any one judge of the King's bench dies, resigns, or is superceded,
the King, with the advice of his council, makes choice of one of the Serjeants at law, whom he constitutes a judge, by his letters patent, in the room of the judge so
deceased, resigning or superceded:” And afterwards he says “it is no degree in law,
but only an office and a branch of magistracy, determinable on the King's good pleasure.”
I have quoted a translation in this place, as I choose to do whenever I can obtain
one, but I don't venture to translate passages myself, lest I should be { 262 } charged, with doing it unfairly. The original words of Fortescue are, unusual and
emphatical. “Ad nutum regis duratura.”

It is true, that in the same fourth institute 117, we read, “that the chief baron
(i.e. of the exchequer) is created by letters patents, and the office is granted to
him quam diu se bene gesserit, wherein he hath a more fixed estate (it being an estate
for life) than the justices of either bench, who have their offices but at will: And
quam diu se bene gesserit must be intended in matters concerning his office, and is
no more than the law would have implied, if the office had been granted for life.
And in like manner are the rest of the barons of the exchequer constituted, and the
patents of the attorney general and solicitor are also quam diu se bene gesserit.”

It is also true, that by the law of this province—a superior court of judicature,
court of assize, and general goal delivery, is constituted over this whole province,
and “by one chief justice, and four other justices to be appointed and commissionated for the same; who shall have cognizance of all pleas, real, personal or mixt, as
well as pleas of the crown, &c. and generally of all other matters as fully and amply
to all intents and purposes whatsoever, as the court of King's bench, common pleas
and exchequer within his Majesty's kingdom of England, have, or ought to have,” &c.3

Will it be said that this law, giving our judges cognizance of all matters, of which
the court of exchequer has cognizance, gives them the same estate in their offices,
which the barons of exchequer had? or will it be said, that by “the judges,” General
Brattle meant the barons of the exchequer?

The passages already cited will afford us great light in considering the case of Harcourt
and Fox.4 Sir Thomas Powis, who was of council in that case for the plantiff, indeed says,
“I take it, by the common law, and the ancient constitution of the kingdom, all officers
of courts { 263 } of justice, and immediately relating to the execution of justice, were in for their
lives, only removeable for misbehaviour in their offices. Not only my lords the judges
of the court in Westminster Hall were anciently, as they now are, since this revolution,
quam diu se bene gesserint, but all the officers of note in the several courts under
them, were so, and most of them continue so to this day, as the clerks of the crown
in this court, and in the chancery, the chief clerk on the civil side in this court,
the prothonotaries in the common pleas, the master of the office of pleas in the exchequer,
and many others; I think generally speaking, they were all in for their lives, by
the common law, and are so still to this day.”5

“And in this particular the wisdom of the law is very great, for it was an encouragement
to men to fit and prepare themselves for the execution and performance of those offices,
that when by such a capacity they had obtained them, they might act in them safely,
without fear or dependance upon favour; and when they had served in them faithfully
and honestly, and done their duty, they should not be removed at pleasure. And on
the other side the people were safe, for injustice, corruption or other misdemeanours
in an office were sufficient causes for removal and displacing the offenders.”

And Serjeant Levinz, says, “If any judicial or ministerial office be granted to any
man to hold, so long as he behaves himself well in the office, that is an estate for
life, unless he lose it for misbehaviour. So was Sir John Wallers [Walter's] case, as to the office of chief baron of the exchequer; and so was Justice Archer's
case in the time of King Charles the second. He was made a judge of the common pleas
quam diu se bene gesserit, and though he was displaced, as far as they could, yet
be continued judge of that court to the time of his death; and his name was used in
all the fines and other records of the court: And so it is in all cases of grants
from the King, or from any other person.”

And afterwards, “It is a grievance that runs through the whole common law,6 as to ministerial offices; for all the offices in this court in the chancery, in
the exchequer, in the common pleas, and generally all over the kingdom, relating to
the administration of justice, and even the judges themselves, are officers for life;
and why there should be more of a grievance in this case, than in theirs, I do not
see: In general they are all for life, though some few particular ones may be excepted
indeed.”

I have repeated at length these sayings of Sir Thomas Powis, and Serjeant Levinz,
because they are music in my ears, and I sincerely { 264 } wish they were well supported, and because, I suspect the General Brattle derived
much of his learning, relative to the judges offices, from them.

But alas! so far as they make for his purpose, the whole stream of law and history
is against them. And indeed Mr. Hawles who was of council for Mr. Fox, seems to have
given a true and sufficient answer to them, in these words, “whatsoever the common
law was [as] to officers [offices] that were so ancient, is no rule in this matter; tho' tis we know, that as our books
tell us, some offices were for life. And the office of Chancellor of England, my Lord
Coke says, could not be granted to any one for life. And why? Because it never was
so granted. Custom and nothing else prevails and governs in all these cases;[of] those offices that were usually granted for life, a grant of such an office for life
was good, and of these that were not usually granted for life, a grant of such an
office for life was void.”

The judges indeed did not expressly deny any of these sayings of Sir Thomas Powis,
or of Serjeant Levinz who spoke after him, on the same side, but the reason of this
is plain, because, it was quite unnecessary, in that case to determine, what was common
law, for both the office of custos rotolorum, and that of clerk of the peace, were
created by statute, not erected by common law, as was clearly agreed, both on the
bench and at the bar.

Nevertheless, my lord Holt seems to have expressed his opinion, when he said, “I compare
it to the case which my Lord Chief Justice Hobart puts of himself in his book 153.—Colt
and Glover's case.7 Saith he, 'I cannot grant the offices of my gift as chief justice for less time than
for life,' and he puts the case there of a man's assigning a rent for dower out of
the lands dowable, that it must be for no less estate than life; for the estate was
by custom, and it cannot be granted for a lesser estate than what the custom appoints; and in that case of the chief justice, [in] his granting offices in his gift, all that he had to do, was to point out the person that should have the office, the custom settled his estate
in it.”

Thus we see that the sentiments of Lord Coke and of Lord Holt, concur with those of
Mr. Hawles that the custom, was the criterion, and that alone. So that if the King
should constitute a Baron of the Exchequer during pleasure, he would have an estate
for life in his office, or the grant would be void. Why? Because the custom had so
settled it—If the King should constitute a Judge of the King's bench, or common bench,
during good behavior, he would have only an estate at will of the grantor. Why? Because
the custom hath deter• { 265 } mined it so. And that custom could not be annulled or altered but by act of parliament.

But I go on with my delightful work of quotation, 1. Black. Com.8 267, 8—“In order to maintain both the dignity and independency of the judges in the
superior courts, it is enacted by the stat. 13 W. 3. c. 2. that their commissions
shall be made (not as formerly, durante beneplacito, but) quam diu bene se gesserint
and their salaries ascertained and established; but that it may be lawful to remove
them on the address of both houses of Parliament. And now, by the noble improvements
of that law in the statute of 1 G. 3. c. 23. enacted at the earnest recommendation
of the King himself from the throne, the judges are continued in their offices during
their good behavior, not-withstanding any demise of the crown (which was formerly
held, see Lord Ray. 747 immediately to vacate their seats), and their full salaries
are absolutely secured to them during the continuance of their commissions: His Majesty
having been pleased to declare that he looked upon the independence and uprightness
of the judges, as essential to the impartial administration of justice; as one of
the best securities of the rights and liberties of his subjects; and as most conducive
to the honor of the crown.”

It would be endless to run over all the passages in English history, relating to this
subject, and the examples of judges displaced by Kings. It may not be amiss to turn
our attention to a very few however. The oracle himself was silenced by this power
in the crown. Croke Jac. 407.9 —“upon the 18th Nov. this term Sir Henry Montague was made chief justice of the King's
bench, in the place of Sir Edward Coke the late chief justice, who being in the King's
displeasure was removed from his place by a writ from the King, reciting that whereas
he had appointed him by writ to that place, that he had now amoved him, and appointed
him to desist from the further execution thereof: And now this day, Egerton Lord Chancellor
came into the King's bench, and Sir Henry Montague one of the King's Serjeants being
accompanied with Serjeant Hutten [Hutton] and Serjeant Francis Moore, came to the middle of the bar, and then the Lord Chancellor
delivered unto him the King's pleasure to make choice of him to that Place.”

There is a passage in Hume's history of England, which I cannot forbear transcribing,
“The Queens (Eliz.) menace, says he, of trying and punishing Hayward for treason,
could easily have been executed, let his book have been ever so innocent. While so
many terrors hung over the people, no jury durst have acquitted a man whom the court
was resolved to have condemned, &c. indeed there scarce occurs an { 266 } instance, during all these reigns, that the Sovereign, or the ministers, were ever
disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure never failed to second all the views
of the court[crown].”10

Serjeant Levinz in the argument of Harcourt against Fox, speaking of the first parliament
under King William says, “the parliament might observe, that some years before there
had been great changing of offices that usually were for life into offices quam diu
placuerit, this is very well known in Westminster Hall, and I did know some of them
myself, particularly the judges of the courts of common law, for I myself (among others)
lost my judges place by it,” &c.11

Mr. Hume in the reign of James II, says, “the people had entertained such violent
prepossessions against the use, which James here made of his prerogative, that he
was obliged before he brought on Hales's cause, to displace four of the judges, Jones,
Montague, Charlton and Nevil.”12

There is not in history a more terrible example, of judges perishing at the royal
nod, than this; nor a stronger evidence that, the power and prerogative of amoving
judges at pleasure, was allowed to be by law in the crown: It was loudly complained
of as a grievance, no doubt and an arbitrary exertion of prerogative, but it was allowed
to be a legal prerogative still. And it cannot be doubted that the legality of it
would have been denied every where, if the sense of the nation, as well as the body
of the law, had not been otherwise, when the circumstances of that case of Sir Edward
Hales are considered. And they ought to be remembered, and well considered by every
well-wisher to the public; because they shew the tendency, of a precarious dependent
tenure of the judges offices. Sir Edward Hales was a Papist—yet the King gave him
a commission as a colonel of foot—and he refused to receive the sacrament, and to
take the oaths and teste, within the time prescribed by an act of parliament 25. Car.
2. c. 2. by which refusal and that statute he forfeited £. 500. By concert between
King James and Sir Edward, his coachman was employed to bring an action against him
upon that stat. for the penalty. Sir Edward appears and pleads a dispensation under
the broad seal, to act non obstante that statute. To this the plaintiff demurs. When
this action was to be bro't to trial, the judges were secretly closeted by the king,
and asked their opinions. Such as had scruples about judging as the court directed,
were plainly told, by the king himself, that he would have twelve judges of his own
opinion, and turned out of their offices. The judges mentioned by Hume, were thus
displaced, to their lasting { 267 } honour, and one of them Jones had the fortitude and integrity to tell the king to
his face, that he might possibly, make twelve judges, but he would scarcely find twelve lawyers of his opinion. Bedingfield, Atkins, Lutwitche and Heath, to their disgrace and infamy were created
judges. And Westminster Hall thus garbled, became the sanctuary of despotism and injustice;
all the judges excepting one, gave their opinions for the king, and made it a general
rule in law. “1. That the laws of England are the king's laws. 2. That therefore it
is an incident, inseparable prerogative of the kings of England as of all other sovereign
princes, to dispense with all penal laws, in particular cases, and upon particular
necessary reasons. 3. That of these reasons and necessities the king is the sole judge;
consequently, 4. That this is not a trust invested in and granted to the king, but
the ancient remains of the sovereign power of the kings of England, which never was
yet taken from them, nor can be.” In consequence of this decision, the papists, with
the king's permission, set up every where in the kingdom, in the free and open exercise
of their religion. See Rapin, Burnet, Skinner, Comberbeck, St. Fr. [Tr.] and Sir Edward Herbert's vindication of himself.13

To enumerate all the struggles of the people, the petitions and addresses to Kings,
praying that the judges commissions might be granted during good behaviour, the bills
which were actually brought into one or the other house of parliament for that purpose,
which failed of sucess until the final establishment in the 12 & 13. Wm. 3. would
be too tedious, and indeed I anxiously fear I have been so already.

I also fear the proofs that the common law of England has not determined the judges
to have estates for life in their offices, appear to be very numerous and quite irresistable.
I very heartily wish General Brattle success, in his researches after evidence of
the contrary position, and while he is thus engaged, if I should find neither business
more profitable, nor amusement more inviting, I shall be preparing for your Press,
a few other observations on his first Publication.

3. “An Act for the Establishing a Superiour Court of Judicature, Court of Assize and
General Goal Delivery within this Province,” passed 26 June 1699 (Mass., Province Laws, 1:370–371).

4. In the passage which follows, JA quotes the arguments and decisions as given in Shower, Reports, 1:426–440, 506–536. Sir Thomas Powys and Sir John Hawles argued before Justice Sir
William Dolben on 8 Feb. 1692; Serjeant Creswell Levinz offered additional arguments
for the plaintiff on 13 May 1693. The judges' opinions were delivered 30 June 1693.

5. Here JA omitted one sentence from Powys' argument: “So it was, and is with the clerks of assize, and so I take { 268 } it, before the statute of 37 Hen., 8 c. 1. it was with the clerk of the peace” (same, 1:429).

6. JA omitted some of Levinz's prefatory remarks on this point. In speaking of the statute
of Henry VIII which ended life grants to clerks of the peace, the serjeant explained
that such grants were considered grievances “for that statute itself says so, and
sets it forth for a grievance, that sure must be that it was granted to unskilful
persons for life, or else the mere grant for life is a strange kind of grievance;
and it is a grievance, if it be one, that runs through the whole common law” (same,
1:512).

7. This is known more familiarly as the case of commendams. It is reported in The Reports of . . . Sir H. Hobart Resolved and Adjudged by Himselfe and Others in
the Reign of James I, with Some Few Cases in the Reign of Queen Elizabeth, London, 1641. For editions of this work owned by JA, see Catalogue of JA's Library.

8. Sir William Blackstone, Commentaries on the Laws of England.JA's four-volume set of this work, London, 1768–1770, contained volumes from both the
3d and 4th editions. See Catalogue of JA's Library.

13. Thomas Salmon, ed., A New Abridgement and Critical Review of the State Trials and Impeachments for High-Treason,
from the Reign of King Richard II, London, 1738. Entered in Catalogue of JA's Library. A condensation of Herbert's “Vindication” of his course in Hales' case appears at
p. 568–571.

Docno: ADMS-06-01-02-0096-0004

Author: Brattle, William

Recipient: Boston Gazette (newspaper)

Date: 1773-01-18

III. William Brattle to the Boston Gazette

As the lines of mens minds are as various as the features of their faces, they can
no more upon every subject think alike than they can look alike, and yet both be equally
honest; consequently they ought respectively to be treated with good manners, let
their stations in life be what they may, by all excepting those who think they have
infallibility on their side. For the publick peace and good order, I should be willing
to be mistaken in my law as John Adams, Esq; in his letter of last week supposes I
am, if the writers upon political controversy would follow his example in his decent
polite writing. As to his knowledge and learning in the law, I can't expect their
imitation, till they have his genius and accomplishments, which I sincerely believe
are rare. It appears to me that Mr. Adams's sentiments upon the estate that the justices
of the superior court here by virtue of their nomination and appointment have, namely,
that they may be legally displaced, meerly by the arbitrary will and pleasure of the
Governor and Council, are Tory principles. But as I am convinced to draw the consequence
therefrom, that he is one, would be injurious and false, I hope his sentiments (tho'
however mistaken) will not be improved { 269 } to his prejudice. I on the other hand have said, and now declare as my opinion, that
the Governor and Council can no more constitutionally and legally remove any one justice
of the superior court, as the commissions now are, unless there is a fair hearing
and trial, and then a judgment that he hath behaved ill, than they can hang me for
writing this my opinion, and the latter (if it went no further) would not be of one
half the publick mischief and damage as the former, notwithstanding I am very sensible
that this hath been the case in one or two arbitrary administrations. I recollect
but two since the charter; but these were arbitrary, illegal, unconstitutional measures,
and do not determine what the law is, any more then the arbitrary illegal measures
of the Steward Kings determine that their measures were legal, and ought to be the
rule of his present Majesty's conduct. Arbitrary measures never did, after people
had come to their senses, and I hope never will, determine what the law is.

Further I observe, that supposing a corrupt governor and a corrupt council, whether
the words in the commission, are so long as the governor and council please, or during
good behaviour, will just come to the same thing, the security as to the public will
be just the same, but this is not our unhappy case. I am convinced that nothing would
induce his Excellency Governor Hutchinson to nominate, or one member of the council
to consent to a nomination in the room of any one justice of the Superiour Court (however
disagreeable he might be) till he had after a impartial trial been first adjudged
to have behaved ill, and so forfeited his estate by a breach of trust. The first thing
Mr. Adams expresses his great surprize at is, that I should be at any loss, or any
man in the province should be at a loss for what time the grant is made to the Judges;
he says the King can't grant salaries in any other manner than durante bene placito,
and that the King's power to grant salaries to any Judges in America, is derived solely
from the late act of Parliament, and that gives no power to grant salaries for life
or good behaviour, the above assertions without the least color of proof, but Mr.
Adams's word for it, I deny. The parliament grants no salaries to the Judges of England,
the King settles the salaries and pays his Judges out of the civil list; and I challenge
Mr. Adams to show one instance of any Judge who was continued in office, tho' at the
same time most disagreeable to the king that his salary was taken from him; to suppose
this is frustrating the act of parliament that enacts that their commissions should
be during good behaviour; for what if they are during good behaviour, what good will
it do them, or what safety will it be to the community if it is in the { 270 } power of the King to take away their salaries and starve them? Will they not in this
case be as dependent upon the Crown as if their commissions were to determine by the
will of the King? Again, this act of parliament with respect to the Judges salaries,
was made for no other reason than this, that the King might not pay them out of the
civil list, but out of another fund, namely, out of the revenue; here the abovementioned
act says nothing about durante beneplacito, and therefore if there is a grant made
to the Judges, that grant stands upon the same footing with the salaries granted by
the King to the Judges in England. Mr. Adams challenges me to produce one lawyer that
ever was, or now is, in the country, that entertained such an opinion as I have advanced,
namely, that by the common law of England, the Judges commissions are so long as they
behave well: He acknowledges there may be respectable lawyers in this country, that
hold that the Judges commissions are during good behaviour, though not expressly mentioned
in their commission, but it is on other principles. I answer, if they are of that
opinion, it must be upon my principles, for there is no statute law about it which
extends to the plantations, the canon law nor civil law says nothing about it; and
therefore if they are in sentiments with me, they can found their opinion on the common
law only; and this I do solemnly declare, the honorable Mr. Read2 did, who was to every lawyer as highly esteemed for reforming, and correcting the
law and the pleadings as Justinian was at Rome. He was my friend, my father, under
whose direction I studied the law. I have heard him often and often declare it, as
his opinion, and I have living witnesses to prove it; the late Judge Auchmuty3 was of the same mind. I have asked no gentleman at the bar now on the stage their
opinion, and do not know it. But this I know, that it is the opinion of the greatest
lawyers who are not at the Bar in the province, that I am right in what I have advanced.
Mr. Adams makes a further challenge, and denies that I can produce the name of one
of the sages of the law, by whom it hath been settled as I contend for, or in other
words, that I am alone in my sentiments. This surprizes me much, that a gentleman
of Mr. Adams's learning should be so extreamly mistaken and forgetful: Sir Thomas
Powis one of the sages of the law gives his opinion in the words following, “I take
[it] by the common laws and the ancient constitution of the kingdom all officers of courts
of justice, and immediately relating to the execution of justice, were in for their
lives, only removeable for misbehaviour in their offices: Not only my lords the judges
of the courts of Westminster-Hall were anciently as they now are, since the { 271 } revolution, quam diu [se] bene gesserint, but all the offices [officers] of note in the several courts under them were so, and most of them continue so to
this day; as the clerks of the crown in this court and in the chancery, the chief
clerk on the civil side in this court, the prothonotaries in the common pleas, [the] master of the office of pleas in the exchequer, and many others. I think speaking
generally they were all in for their lives by the common law, and are so to this day.—I shall not enlarge upon this matter, I need not, it being
so well known,” says Sir Thomas.4 Sergent Levenz expressly says, that in the time of King Charles the second, S. [John] Archer was made a judge of the common pleas quam diu bene se gesserit. If it never
was the common law of England that the judges commissions run during their good behaviour,
as Mr. Adams affirms, and there was an act of parliament formerly that they should
be during the king's pleasure (which let it be observed Lord Coke never said there
was a statute relating to it) unless that statute was repealed, and I challenge Mr.
Adams, and so I would my Lord Coke if he was alive, to shew that it was, or even that
there ever was such a statute. I quere how it come about that King Charles the second
did not conform to said statute, how in the face of an act of parliament or the common
law, or both, to give commissions to the judges to continue during good behaviour,
and thereby lessen their dependence on him; this can't well be reconciled with the
history of his reign. And how come it about that ever since the revolution to George
the first time, the commissions were during good behaviour. This I agree with Mr.
Adams was the case, and am quite obliged to him for correcting my mistake when in
my harrangue I said otherwise. According to Mr. Adams's doctrine, and according to
the law, they were ipso facto null and void, because they were directly against law;
provided Mr. Adams is right that both common law and statute law formerly obliged
the King to give the judges their commission during good pleasure only. But I conceive
that King William and Queen Mary that came over to save an almost ruined and undone
people, by the tyranny of their predecessors, and their acting directly contrary to
the laws of the land, that they should begin their reign by going directly against
the law, and thereby violate their coronation oath, this is not credible. What the
law was before their reign, was better known, and the law which was often fluctuating
by the arbitrary power of some former princes, was put upon a more solid basis since
the revolution than it was before. And we are to inquire what the law was formerly
by the resolutions, the judgments of court, and the practice since the revolution,
and the tenure of the { 272 } judges commission since the revolution being during good behaviour, to the reign of
George the first, and when the act of King William was to take place,5 and not before, namely, that during good behaviour should be in their commissions,
plainly proves what I have advanced to be law, is law, or else great dishonor is reflected
upon King William, Queen Mary, and Queen Ann. I am obliged to Mr. Adams for quoting
the following passage out of my Lord Coke, which fully justifies my reasoning upon
the Judges commissions. The words are these. “It is a rule in law that ancient offices
must be granted in such forms and in such manner as they have used to be, unless the
alteration was by authority of parliament.”6

It is manifest to every one that doth not depend upon their memory, that lord chief
justice Holt, one of the sages of the law, apprehended that for the Judges commissions
being during good behaviour, was upon the rule of the common law. He says after a
cause had been argued upon a special verdict; after Sir J. Powes and serjeant Levenz
had most positively affirmed, that this was the rule of the common law, not denied
by the council on the other side, but rather conceded to: that in giving his opinion
upon the whole matter, we all know it, says that great lawyer, and our places as judges
are so settled, only determinable by misbehaviour,7 settled by whom? not by an act that was not to take place till the accession of George
the first, not by any statute then existing; where is it? Whoever heard of it? Let
it be produced; if not by statute, certainly then by common law. And can any man think
that Lord Chief Justice Holt would have taken a commission from King William and Queen
Mary, if they had offered him one, supposing it had been contrary to law, or rather
if it had not been consonant to law: Or can we suppose that all the judges of the
King's bench would have heard the before mentioned gentlemen with respect to the tenure
of the judges commissions, without a reproof, or at least without telling them it
was not law, if all the judges had not thought it was law; I leave the world to determine.

Mr. Adams says, and says truly, that Sir John Holt, kt. chief justice of the King's
bench, holding his office by writ, tho' it was quam diu bene se gesserit; held it
to be determined by the demise of the King, and therefore Queen Ann ordered a new
writ. And what then? Every civil officers commission holden quam diu bene gesserint,
died with the demise of the King, till the act made in the present King's reign. Wherefore
there was an act of parliament that all officers should be continued a certain time
after the demise of the King, to prevent the total stagnation of justice.8

Mr. Adams supposes a material difference between an estate that the judges have as
such for life, or so long as they behave well: the following judges his equals at
least differ from him. Serjeant Levenz “I take it clear law, that if an office be
granted to hold so long as he behaves himself well in the office, that is an estate
for life, unless he lose it for misbehaviour; for it hath an annexed condition to
be forfeited upon misdemeanor, and this by law is annexed to all offices, they being
trusts; and misdemeanors in an office is a breach of trust”; and with his opinion
agree the judges of the Kings bench in the case of Harcourt against Fox. J Eyre says,
I do not think there is plainly given an estate for life in his office determinable
upon his good behaviour: J Gregory says the same: J Dolben says that if any man is
to enjoy an office so long as he behaves well in it, no one will doubt but the grantee
hath an estate for life in it. My Lord Chief Justice Holt says, I do agree with my
brothers in opinion.9 Upon the whole, using Mr. Adams's own words, My haranguing in the town meeting in Cambridge hath not received any sufficient legal answer; and not-withstanding my veneration for Mr. Adams's authority,
it by no means prevails with me to give credit to his doctrine: Nor do his reasons
in support of it weigh with me even so much as his authority.

2. John Read (1679/80–1749) was the dominant figure in New England law of the early 18th century. For JA's comments on Read, see his letter to Thomas Welsh, 13 Sept. 1790, JA, Works, 9:572; a sketch of Read appears in Sibley-Shipton, Harvard Graduates, 4:369–378.

3. Robert Auchmuty the elder (d. 1750 or 1751). Of Judge Auchmuty, JA wrote: “Set up all Night at his Bottle. Yet argue to Admiration next Day” (Diary and Autobiography, 2:113; for a sketch of Auchmuty, see same, 1:160).

7. This quotation is taken from Holt's opinion in Harcourt v. Fox, Shower, Reports, 1:535. For JA's comments on Brattle's interpretation of this remark, see No. VI, below.

8. As JA pointed out in his rejoinder (see No. VIII, below), this statute was passed in the reign of Queen Anne, not in that of George
III.

9. That is, Holt agreed with justices Sir Giles Eyre, Sir William Gregory, and Sir William
Dolben, who sat with him on King's Bench.

Docno: ADMS-06-01-02-0096-0005

Author: Adams, John

Recipient: Boston Gazette (newspaper)

Date: 1773-01-25

IV. To the Boston Gazette

[dateline] [Monday, January 25, 1773]

[salute] To the PRINTERS.

Another observation which occurred to me upon reading General Brattle's first publication,
was upon these words, “That by the charter and common law of England, there is no
necessity of { 274 } having any commission at all; a nomination and appointment are the words of the charter,
a commission for them not so much as mentioned in it. Their commission is only declarative
of their nomination and appointment.” Two questions arise upon this paragraph; and
the first is, what provision is made by our charter? and the next is, what was necessary
to the creation of a judge at common law?

As to our Charter: The King thereby grants and ordains, “That it shall and may be
lawful for the said governor, with the advice and consent of the council or assistants,
from time to time, to nominate and appoint judges, commissioners of oyer and terminer,
sheriffs, provosts, marshalls, justices of the peace, and other officers, to our council
& courts of justice belonging.”1

It is obvious from this, that there is no superior court of judicature court of assize
and general goal delivery, nor any inferior court of common pleas, or any court of
exchequer, expressly erected by the charter. Commissioners of oyer and terminer, the
governor, with the advice and consent, of the council, is empowered to nominate and
appoint: But it will not follow from hence, that a nomination and appointment, will
alone constitute and empower commissioners of oyer and terminer. For the judges, which
the governor with the advice of council are empowered to nominate and appoint, are
not vested with any powers at all by the charter; but by another clause in it, the
Great and General Court or Assembly “shall forever have full power and authority to
enact and constitute judicatories and courts of record, or other courts, to be held
in the name of us, our heirs and successors; for the hearing, trying and determining
of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes
and things whatsoever, arising or happening within our said province or territory;
or between persons inhabiting and residing there; whether the same be criminal or
civil, and whether the said crimes be capital or not capital, and whether the said
pleas be real, personal or mixt; and for the awarding and making out execution thereupon.”
In pursuance of this authority, our legislature, in 1699. by a law, 2 W. 3. c. 3.
have established a “superior court of judicature, court of assize and general goal
delivery within this province, to be held by one chief justice, and four other justices
to be appointed and commissionated for the same,”2 &c. Is not General Brattle then greatly mistaken when he says that “a nomination
and appointment recorded is enough?”—enough for what? enough to constitute judges
of our superior court, for they alone can be meant by the General, because the General
himself determines his own meaning to be “they who have the same { 275 } powers with the king's bench, common bench and exchequer,” and no other judges have
those powers, but the judges of our superior court, &c. and they have them, not by
charter, but by the law of the province. If the governor should nominate and appoint
with advice and consent, &c. A. to be a judge, or A. B. and C. to be “judges” in the
words of the charter, what powers would this nomination and appointment convey? none
at all. It would be nugatory, and void. For according to Lord Coke, 4 Inst. 200, a
“new court cannot be erected but by act of parliament. And when a new court is erected,
it is necessary that the jurisdiction and authority of the court be certainly set
down. And that the court can have no other jurisdiction than is expressed in the erection.”
And he there mentions the case of a letters patents granted by E.G.3 in these words. “We will and ordain, that Richard Beauchampe, &c. should have it
(i.e. the office of the chancellor of the garter) for his life, & after his decease,
that his successors should have it forever; and it was resolved unanimously that this
grant was void; for that a new office was erected, and it was not defined what jurisdiction
or authority the officer should have; and therefore for the uncertainty it was void.”

Let us next enquire, whether by the common law of England, there is or is not a necessity
of the judges having any commissions at all. The authorities cited before, seem to
shew very plainly, that the judges either of the king's bench, common bench, or exchequer,
can be created only by writ, or by letters patents; and altho', these may be said
not to be commissions, yet they are surely something more than nomination and appointment.
However, writs and letters patents, are commissions, I presume, and should never have
doubted it, if I had never read a News-Paper,—But if I had doubted, I might easily
have resolved the doubt. For we read in 1 Bac. Abr.4 555. That “all judges must derive their authority from the crown by some commission
warranted by law; the judges of Westminster, are (all, except the chief justice of
the king's bench, who is created by writ) appointed by patent, and formerly held their
places only during the King's pleasure, &c.” 4 Inst. 75. “Where in 5 E. 4. it is holden
by all the justices in the Exchequer chamber that a man cannot be justice by writ,
but by patent or commission, it is to be understood of all the judges, saving the
chief justice of this court, (that is the king's bench) but both the chief justice
and the rest of the judges may be discharged by writ under the great seal.” And in
page 74, Lord Coke observes, that “the creation of the office, of chief justice, was
first by writ, and afterwards by letters patents.”5 —1 Bac. Abr. 555. “As all judges must { 276 } derive their authority from the crown, by some commission warranted by law, they must
also exercise it in a legal manner.”

In order to see whether writs and letters patents are not commissions, let us look
into any common dictionary or interpreter of law terms. See Cunningham's dictionary
and Cowell's interpreter,6 under the word Commission. “Commission commissio” (says Cowell, and after him in
the same words Cunningham,) “is for the most part in the understanding of the law,
as much as Delegatio with the Civilians. (See Brooke & Sit. [tit.] Commission) and is taken for the warrant, or letters patents, that all men exercising
jurisdiction either ordinary or extraordinary have, for their power to hear, or determine
any cause or action.”

Thus it seems to be very clear, that by the common law of England, a commission was
absolutely necessary, for all the judges known at common law, and as to others erected
by statute, let the statute speak. By 27 H. 8. c. 24. it is enacted, “That no person
or persons of what estate, degree, or condition soever they be, shall have any power
or authority to make any justices of Eyre, justices of assize, justices of peace,
or justices of goal delivery; but that all such officers and ministers shall be made
by letters patents, under the King's great seal, in the name and by the authority
of the King's highness, in all shires, counties, palatine, wales, &c. or any other
his dominions, &c. any grants, usages, allowance or act of parliament to the contrary
notwithstanding.”

I shall add no more upon this point, but this, we find in Jenkins's centuries 123:7 This question determined by all the judges of England in the Exchequer chamber, “A
writ of Admittas in association is directed to the justices of assize; A. shews this
writ of admittas, in association to them, but does not shew the patent by which he
is made justice: In this case, both ought to be shewn to the justices of assize. By
all the judges in the Exchequer chamber, The judges of the king's bench, and common
pleas, and the barons of the exchequer are made by patent, in which the word constituimus
is used. The chief justice of the king's bench is constituted only by writ.”

4. Matthew Bacon, A New Abridgement of the Law, 5 vols., London, 1736–1766. Entered in Catalogue of JA's Library.

5. This is either a misquotation by JA or a misprint. In his 4th Institute, Coke made the reverse of this observation on the chief justice's appointment: “The
creation of his office was by letters patents,” he explained, until Edward I, “being
a wise and prudent prince,” employed a “new kind of creation, viz. { 277 } by writ.”

6. Timothy Cunningham, A New and Complete Law-Dictionary, 2 vols., London, 1764, 1765; John Cowell, The Interpreter: or Booke containing the Signification of Words, London, 1637. Both entered in Catalogue of JA's Library. Cowell's citation is to Sir Robert Brooke, La Graunde Abridgement, under the title “Commission.” Brooke is a kind of handbook of cases at common law
arranged alphabetically.

V. To the Boston Gazette

[dateline] [Monday, February 1, 1773]

[salute] To the PRINTERS,

[epigraph]

One Thing at one Time.

[signed] De Witt.

The question is, in the present state of the controversy, according to my apprehension
of it, whether, by the common law of England, the judges of the King's bench and common
bench, had estates for life, in their offices, determinable on misbehaviour, and determinable
also on the demise of the crown? General Brattle still thinks they had, I, cannot
yet find reasons to think so: And as, whether they had, or had not, is the true question
between us. I will endeavour to confine myself to it, without wandering.—

Now in order to pursue my enquiry, regularly, it is necessary, to determine with some
degree of precision, what is to be understood by the terms “common law”—Out of the
Mercian laws, the laws of the West Saxons, and the Danish law, King Edward the confessor
extracted one uniform digest of laws, to be observed throughout the whole kingdom,
which seems to have been no more than a fresh promulgation of Alfreds code or domebook,
with such improvements as the experience of a century and an half had suggested, which
is now unhappily lost. This collection is of higher antiquity than memory or history
can reach. They have been used time out of mind, or for a time whereof the memory
of man runneth not to the contrary. General customs which are the universal rule of
the whole kingdom, form the common law in its stricter and more usual signification.
This is that law, which determines that there shall be four superior courts of record,
the chancery, the king's bench, the common pleas, and the exchequer, among a multitude
of other doctrines that are not set down in any written statute or ordinance, but
depend merely upon immemorial usage, that is upon common law for their support. Judicial
decisions are the principal and most authoritative evidence, that can be given, of
the existence of such a custom as shall form a part of the common law. The law, and
the opinion of the judge are not always convertible terms, tho' it is a general rule
that the decisions { 278 } of courts of justice are the evidence of what is common law. See 1 Black. Com. 65,
66, 67, 68, 69, 70, 71, 72, 73. I have endeavoured to ascertain what is meant by the
common law of England, and the method of determining all questions concerning it from
Blackstone. Let us now see what is said upon the same subject by justice Fortescue
Aland in the preface to his reports.1

Our judges, says he, do not determine according to their Princes or their own arbitrary
will and pleasure, but according to the settled and established rules, and ancient
customs of the nation, approved for many successions of ages. King Alfred who began
to reign in 871, Magnus Juris Anglicani Conditor, the great founder of the laws of
England, with the advice of his wise men, collected out of the laws of Ina, Offa,
and Aethelbert, such as were the best, and made them to extend equally to the whole
nation, and therefore very properly called them, the common law of England, because
these laws were now first of all made common to the whole English nation. This jus
commune, jus publicum, or Folcright, i.e. the peoples right, set done [down] in one code, was probably the same with the doombook or liber judicialis, which is
referred to in all the subsequent laws of the Saxon Kings, and was the book that they
determined causes by. And in the next reign, that of Edward the elder, the King commands
all his judges to give judgment to all the people of England according to the doom
book. And it is from this origin that our common law judges fetch that excellent usage
of determining causes, according to the settled and established rules of law, and
that they have acted up to this rule above eight hundred years together, and continue
to do so to this day. Edward the confessor was afterwards but the restorer of the
common law, founded by Alfred, and William the conqueror confirms and proclaims these
to be the laws of England, to be kept and observed under grievous penalties, and took
an oath to keep them inviolable himself. King Henry the first promised to observe
them—King Stephen, King Henry the second and Richard the first confirmed them. King
John swore to restore them. King Henry 3d confirmed them. Magna Charta was founded
on them. And King Edward the first in parliament confirmed them—page 3, 4, 5, 6, 7,
8, 9, 10.

Now I apprehend General Brattle's opinion to be, that the common law of England, the
birthright of every subject, or in the language of the Saxons, the Folcright, determines,
the judges of the King's bench, and common pleas to have estates for life in their
offices, determinable only on misbehaviour, or the demise of the Crown. And this I
suppose { 279 } was the meaning of Sir Thomas Powis, when he said, “I take it, by the common law, and the ancient constitution of the kingdom, all officers of courts of justice, &c. were in for their lives, &c. not only my
lords the judges of the courts in Westminster Hall, were anciently, as they now are
since this revolution, quam diu se bene gesserint.”2

I have never expressed any disrespect to the character of Sir Thomas Powis, and I
have no disposition, to harbour any: It is enough for me to say, that these expressions
were used by him, when arguing a cause for his client at the bar, not when he was
determining a cause as a judge; that they were entirely unnecessary for the support
of his cause, which was a very good one, let these expressions be true, or otherwise,
i.e. whether the judges, were anciently, in for their lives, or only at pleasure:
that they depend wholly upon his affirmation, or rather his opinion, without the colour
or pretence of an authority to support them; and that I really believe them to be
untrue. And I must add, it appears to me, extraordinary, that a gentleman, educated
under that great Gamaliel, Mr. Reed, should ever adduce the simple dictum, of a council
at the bar, uttered arguendo, and as an ornament to his discourse too, rather than
any pertinent branch of his reasoning, as evidence of a point “settled and determined
by the greatest sages of the law formerly and more lately.” Does Sir Thomas Powis
produce, the doom book itself, in support of his doctrine? That was irrecoverably
lost for ages before he had a being? Does he produce any judicial decision ancient
or modern, to prove this opinion? No such thing pretended,—Does he produce, any legal
authority, a Hengham, Britton, Fleta,3 Fortescue, Coke, or any Antiquarian, Mathew Paris, Dugdale, Lambard, or any other,
or even the single opinion of one historian, to give a colour to his doctrine? No
such matter. Nay I must enquire further, can general Brattle, draw from any of these
sources, a single Iota to support this opinion? But in order to show for the present
the improbability that any such authority will be found, let us look a little into
history. Mr. Rapin, in his dissertation on the government of the anglo Saxons, vol.
1. 157.4 says, “one of the most considerable of the kings prerogative[s] was the power of appointing the earls, viscounts, judges and other officers, civil and military, very probably, it was in the king's power to change these officers, according to his
pleasure, of which we meet with several instances in history.” By this it appears to have
been Mr. Rapin's opinion, that very probably, the kings, under the ancient Saxon constitution,
had power to change the judges, according to their pleasure. I would not be understood
however to lay any great stress, { 280 } on the opinions of historians, and compilers of antiquities, because it must be confessed,
that the Saxon constitution, is involved in much obscurity, and that the monarchical
and democratical factions in England, by their opposite endeavors, to make the Saxon
constitutions, swear for their respective systems, have much increased the difficulty
of determining to the satisfaction of the world, what that constitution in many important
particulars, was. Yet Mr. Rapin certainly was not of that monarchical faction, his
byass, if he had any, was the other way, and therefore his concession, makes the more
in my favour.

Mr. Hume in his “feudal and Anglo Norman government and manners” v.i. quar. 412.5 says “the business of the court was wholly managed by the chief justiciary, and the
Law Barons, who were men appointed by the king, and wholly at his disposal.” And since I am now upon Hume, it may be proper to mention the case of Hubert deBurgo,
who while he enjoyed his authority, had an entire ascendency over Henry the Third,
and was loaded with honours and favours beyond any other subject, and by an unusual concession was made chief justiciary of England for life. 2. Hume 162. Upon this I reason thus,
if his being made justiciary for life, was an “unusual concession,” it could not be,
by the immemorial, uninterrupted usage and custom, which is the criterion of common
law. And the very next words of Hume shew, how valid and effectual this grant, of
the office for life was then esteemed, “yet Henry, says Hume, in a sudden caprice,
threw off this faithful minister,” which implies, that he was discarded and displaced in both
his capacities because the summus justiciarius, or chief justiciary, was in those
reigns, supream regent of the kingdom, and first minister of state, as well as of
the law. And this seems to shew that the grant for life, was void and not binding
on the King in the sense of those times, ancient as they were 1231. This summus justiciarius,
is the officer, whose original commission, I gave the public, from lord Coke in my
first paper, which was expressly during pleasure. And my lord Coke's account of the
change of the chief justice's commission and authority may receive some additional
light from lord Gilbert's historical view of the court of exchequer,6 page 7, towards the latter end of the Norman period; the power of the justiciar was
broken, so that the Aula Regis, which was before one great court only distinguished
by several offices, and all ambulatory with the King before Magna Charta, was divided
into four distinct courts, Chancery, Exchequer, King's Bench, and Common Pleas. The
justiciary was laid aside, lest he should get into the throne, as { 281 } Capet and Pippin, who were justiciars in France, had done there. See also Gilbert's
history and practice of the high court of chancery.7

Now from the exorbitant powers and authority of these justiciaries arises a proof
from the frame of the government and the ballance of the estates that the office in
those ages was always considered as dependent on the pleasure of the King, because
the jealousy, between the Kings and Nobles, or between the monarchical and aristocratical
factions, during the whole Norman period, were incessant and unremitted, and therefore
it may be depended on that Kings never would have come into the method, of granting
such an office usually for life. For such a grant, if had been made, and been valid,
must have cost the grantor his throne, as it made the justiciar, independent of the
King, and a much more powerful man than himself—and if during the whole Norman period
and quite down to the death of Sir Edward Coke, a course of almost six hundred years,
the offices of judges were held during pleasure, what becomes of the title to them
for life, which General Brattle sets up, by immemorial, uninterrupted usage or common
law?

Sir Thomas Powis, however, has not determined, whether, by the ancient constitution of the kingdom, he meant, under the Norman, or the Saxon period; and
in order to shew the improbability, that the judges held their offices during good
behaviour in either of those periods, I must beg the pardon of your readers, if I
lead them into ages, manners and government, more ancient and barbarous, than any
mentioned before. Our Saxon ancestors, were one of those enterprizing northern nations,
who made inroads upon the provinces of the Roman empire, and carried with them wherever
they went, the customs, maxims and manners of the feudal system: And although when
they intermingled with the ancient Britons, they shook off some part of the feudal
fetters, yet they never disengag'd themselves from the whole. They retained a vast
variety of the regalia principis, of the feudal system, from whence most branches
of the present prerogatives of our kings are derived. And among other regalia the
creation, and annihilation of judges, was an important branch. For evidence of this
we must look into the feudal law. It was in consequence of this prerogative, that
the courts were usually, held in the aula regis, and often in the King's presence,
who often heard and determined causes in person, and in those ages the justiciary
was only a substitute or deputy to the king; whose authority ceased entirely in the
King's presence. This part of the prerogative, has a long time ago been divested from
the crown, and it has been determined { 282 } that, the King has delegated all his authority to his judges. The power of the King
in the Saxon period, over the judges, was absolute enough however, and they sometimes
treated them with very little ceremony. Alfred himself is said in the mirror of justices8 to have hang'd up 44 of his judges in one year, for misdemeanors.

Serjeant Levenz says,10 “if any judicial or ministerial office be granted to any man to hold, so long as
he behaves himself well in the office, that is an estate for life, unless he loose
it for misbehaviour. So was Sir John Waller's [Walter's] case, as to the office of chief baron of the exchequer”. To all this I agree, provided
it is an office, that by custom, i.e. immemorial usage, or common law, (as that of
the chief baron of the exchequer was,) or by an express act of parliament, (as that
of clerk of the peace in the case of Harcourt against Fox was) has been granted in
that manner, but not otherwise. And therefore these words have no operation at all
against me. But the serjeant goes on, “And so was Justice Archer's case in the time
of King Charles the second. He was made a Judge of the common pleas quam diu se bene
gesserit, and tho' he was displaced as far as they could, yet he continued judge of
that court to the time of his death; and his name was used in all the fines and other
records of the court:”—General Brattle thinks these words are full in his favour,
and he can't reconcile this patent to Judge Archer, with the history of Charles the
second's reign &c. We shall presently see, if a way to reconcile it, cannot be discovered:
But before I come to this attempt, as it is my desire to lay before the public, every
thing I know of, which favours General Brattle's hypothesis, and to assist his argument
to the utmost of my { 283 } power, I will help him to some other authorities, which seem to corroborate, Serjeant
Levinz's saying. And the first is Justice Fortescue Aland, Rep. 394. “Justice Archer
was removed from the common pleas, but his patent being quam diu se bene gesserit,
he refused to surrender his patent, without a scire facias, and continued justice,
tho' prohibited to set there. And in his place Sir William Ellis was sworn.” The next
is, Sir Tho's Ray. 217.11 “This last vacation Justice Archer was removed from sitting in the court of common
pleas, pro quibusdam causis mihi incognitis; but the judge having his patent to be
a judge, quam diu se bene gesserit, refused to surrender his patent without a scire
facias, and continued justice of that court, tho' prohibited to sit there, and in
his place, Sir William Ellis, kt. was sworn.”

But will any man from these authorities conclude, that King Charles the second, had
power by the common law to grant Judge Archer an estate for life in his office? If
he had, how could he be prohibited to sit? How came Justice Ellis to be sworn in his
stead? Was not the admission of Ellis, by his brother judges, an acknowledgment of
the King's authority?—Will any man conclude, from these authorities, that it had before
been the custom time out of mind, for Kings to grant patents to the judges, quam diu
se bene gesserint?—If we look into Rushworth 1366,12 we shall find some part of this mystery unriddled. “After passing these votes against
the judges, and transmitting of them unto the house of Peers and their concurring
with the house of commons therein, an address was made unto the King shortly after,
that his Majesty for the future would not make any judge by patent during pleasure,
but that they may hold their places hereafter quam diu se bene gesserint, and his
Majesty did readily grant the same, and in his speech to both houses of parliament
at the time of giving his royal assent to two bills, one to take away the high commission
court, and the other the court of star-chamber, and regulating the power of the council
table, he hath this passage—If you consider what I have done this parliament, discontents
will not sit in your hearts; for I hope you remember that I have granted that the
judges hereafter shall hold their places, quam diu se bene gesserint—And likewise
his gracious Majesty King Charles the second observed the same rule and method in
granting patents to judges, quam diu se bene gesserint, as appears upon record in
the rolls (viz.) to Serjeant Hide [Hyde], to lord chief justice of the King's bench, Sir Orlando Bridgeman to be lord chief
baron, and afterwards to be lord chief justice of the common pleas, to Sir Robert
Foster and others; Mr. Serjeant Archer now living (notwithstanding his removal) still
{ 284 } enjoys his patent, being quam diu se bene gesserit, and receives a share in the profits
of that court, as to fines and other proceedings, by virtue of his said patent, and
his name is used in those fines, &c. as a judge of that court.” This address was in
1640.

This address of the two houses of parliament, which was in 1640, was made in consequence
of a general jealousy conceived of the judges, and the general odium which had fallen
upon them, for the opinion they gave in the case of ship money, and other cases, and
because there had been not long before changes and removals in the benches; to mention
only one, Sir Randolph Crew not shewing so much zeal for the advancement of the loan,
as the King was desirous he should, was removed from his place of lord chief justice,
and Sir Nicholas Hyde succeeded in his room. See Rushworth, 420. 2. Rush. Append.
266.13 —And King Charles in 1640 began to believe the discontents of his subjects to be
a serious affair, and think it necessary, to do something, to appease them.

But will it do to say, that he had power to give away the prerogative of the crown,
that had been established in his ancestors for 800 years, and no man can say how many
centuries longer, without an act of parliament? against the express words of Lord
Coke, which the General thanks me for quoting. “It is a rule in law that ancient offices
must be granted in such forms and in such manner as they have used to be, unless the
alteration was by authority of parliament.”

As to King Charles the IId, his character is known to have been a man of pleasure
and dissipation, who left most kinds of business to his ministers, and particularly
in the beginning of his reign, to my Lord Clarendon, who had perhaps a large share
in procuring that concession from Charles the 1st, and therefore chose to continue
it under the second.

But notwithstanding all this, Charles the IId, soon discovered that by law, his father's
concession and his own, had not divested him of the power of removing judges, even
those to whom he had given patents, quam diu se bene gesserint, and he actually re-assumed
his prerogative, displaced Judge Archer and many others in the latter end of his reign,
and so did his successor, see Skinner's reports14 and Ray. 251. These examples shew that those Kings did not consider these concessions
as legally binding on them. They also shew, that the judges in Westminster-Hall were
of the same mind, otherwise they would not have admitted the new judges in the room
of those displaced; and it seems that even the judges themselves who were then displaced,
Judge Archer himself did not venture to demand his { 285 } place, which he might have done, if he had an estate for life in his office. Nay,
it may be affirmed, that the house of Commons themselves, were of the same mind, for
in the year 1680, in the reign of Charles the IId, after the removal of Archer and
many other judges, the commons brought in a bill, to make the office of judge during
good behaviour: see 8. Hume. 143. Now I think they would not have taken this course,
if they had thought Archer had an estate for life in his office, but would have voted
his removal illegal, and would have impeached the other judges for admitting another
in his room.

Archers “continuing judge,” and “receiving fees for fines” and “his name's being used
in the fines,” I conjecture are to be accounted for in this manner. He refused to
surrender his patent, without a scire facias. The King would not have a scire facias
brought, because, that would occasion a solemn hearing, and much speculation, clamour
and heat, which, he chose to avoid; and as his patent remained unsurrendered and uncancelled,
and as by law there might be more judges of the common pleas than four, and therefore
the appointment of another judge, might not be a supersedeas to Archer, they might
think it safest to join his name in the fines, and give him a share in the fees. And
no doubt, this might be done in some instances to keep up the appearance of a claim
to the place, and with a design to provoke the King's servants and friends to bring
a sci. fa. and so occasion an odium on the administrations, and hasten on a revolution.

I have hazarded these conjectures, unnecessarily, for it is incumbent upon General
Brattle to shew from good authorities, for the affirmative side of the issue is with
him, that, by common law the judges had estates for life in their offices. In order
to do this, he ought to shew that the King, at common law, i.e. from time immemorial,
granted patents to these judges during good behaviour, or that he the King had his
election to grant them either durante beneplacito or quam diu se bene gesserit, as
he pleased. Nay, it is incumbent on him to shew that a patent, without either of these
clauses, conveys an estate for life. None of these things has he done, or can he do.

It was never denied, nor doubted by me that a grant made in pursuance of immemorial
custom, or of an act of parliament, to a man to hold so long as he should behave himself
well, would give him an estate for life. The unanimous judgment of the court in that
case of Harcourt against Fox proves this. But then, in that case an express act of
parliament impowered the custos retulorum, to constitute a clerk of the peace for
so long time as he should behave himself well. Nor have I any doubt that the patents
to the Barons of the { 286 } exchequer, which are by immemorial usage, quam diu se bene gesserint, convey to them
an estate for life: but my difficulty lies here, no custom, no immemorial usage, no
act of parliament enabled the King, to grant patents to the judges of Kings bench
and common pleas, expressly quam diu se bene gesserint; and therefore, if Lord Coke's
rule is right “that ancient offices must be granted in such forms and in such manner
as they have used to be, unless the alteration be by authority of parliament,” —the
Kings grant, at common law, to a judge of King's bench or common pleas, of his office
for life in terms, or during good behaviour, which is tantamount, would have been
void,—void I mean quoad an estate for life or good behaviour, but good as an estate
at will, and I conceive when we read that the King cant make a Lord Chancellor for
life, but that such a grant would be void, the meaning is, that the habendum for life
or good behaviour shall be void; but that this shall not vitiate the other parts of
the patents, but that they shall convey such estate, and such estate only, as the
King had power by custom, or by statute to grant. I don't suppose that the writ to
Lord Holt, or the patents to his brothers in the reign of King William were void,
but I fear that had the King seen fit to have removed them, by writ, it would have
been legally in his power, notwithstanding that clause in their commissions.

[signed] JOHN ADAMS

1. Sir John Fortesque Aland, Reports of Select Cases in All the Courts of Westminster-Hall, London, 1748. Entered in Catalogue of JA's Library.

4. Paul de Rapin-Thoyras, The History of England, 2 vols., London, 1732–1733. Entered in Catalogue of JA's Library.

5. “The Feudal and Anglo-Norman Government and Manners” is appendix 2 of Hume, England. The feudal courts are discussed at 1:497–499 in the Boston edition of 1854.

6. Sir Geoffrey Gilbert, An Historical View of the Court of Exchequer, and of the King's Revenues, There Answered, London, 1738. Entered in Catalogue of JA's Library.

7. Sir Geoffrey Gilbert, The History and Practice of the High Court of Chancery, London, 1758. Entered in Catalogue of JA's Library.

8. The Mirror of Justices, London, 1742, transl. W[illiam] H[ughes], London, 1646. The author of this treatise,
which is full of ridiculous inaccuracies, distorted borrowings, and romanticized incidents,
is unknown, although speculation has assigned the honor to Andrew Home, Chamberlain
of the City of London. The MS was composed in the late 13th century. See William Joseph Whittaker, ed., The Mirror of Justices, London, 1895, with introd. by Frederic W. Maitland.

12. John Rushworth, ed., Historical Collections of Private Passages of State . . . , 4 parts in 7 vols., London, 1659–1701. Only two copies of later editions of vol.
1 are entered in Catalogue of JA's Library.

13. In Rushworth's Historical Collections, the documents concerning the case brought against John Hampden for refusal to pay
ship money in 1637 and the removal of Sir Randolph Crew in 1626 appear in vol. 2:480–605
and in the appendix to the same vol., p. 266–268.

14. Robert Skinner, Reports of Cases Adjudged in the Court of King's Bench from the Thirty-Third Year
of ... Charles II to the Ninth Year of William III, with Some Arguments in Special Cases, London, 1728. Entered in Catalogue of JA's Library.

Docno: ADMS-06-01-02-0096-0007

Author: Adams, John

Recipient: Boston Gazette (newspaper)

Date: 1773-02-08

VI. To the Boston Gazette

[dateline] [Monday, February 8, 1773]

[salute] To the PRINTERS.

Two or three anecdotes, were omitted in my last, for want of room, which may be here
inserted, in order to shew that General Brattle's “rule of the common law of England”
originated in the reign of King Charles the first. I say originated, because the example
of Hubert de Burgo, is so ancient and so uncertain, that it is even doubted by Baron
Gilbert, whether he was ever chief justiciary or not.

In 1641 King Charles the first, finding his affairs in a desperate condition was obliged
to consent to an act of the Scottish parliament, that no member of the privy council,
no officer of state, none of the judges, should be appointed, but by advice and approbation
of parliament; and all the officers of state were to hold their places quam diu se
bene gesserint. Four of the present judges, who had been active on the side of prerogative,
were displaced.

In 1642, the parliament of England, transmitted to the King at York, nineteen propositions,
in order for an accommodation of the differences then subsisting, the twelfth of which,
was, that the judges should hold their places quam diu se bene gesserint. See Rapin
and Mrs. Maccaulay.

This was but about two years after the King had given orders, at the instance of parliament,
and his royal promise in his public speech, that the judges commissions should for
the future be granted quam diu se bene gesserint. And it proves incontestibly one
of these things, either that the parliament thought the King's promise was void, as
being what he had not power by law to promise—or that the grants so made would be
void, at least as to the Habendum during good behaviour, or at least that the crown
had its election by law to make judges at pleasure or at will, as it should see fit.
Now if either of these apprehen• { 288 } sions were just, it could not be true that at common law, the judges had their commissions
quam diu se bene gesserint, nor could it be true that by common law, the judges had
estates for life in their offices, whether quam diu se bene gesserint was in their
commissions or not.

I believe enough has been said, concerning these dark sayings of Powis and Levenz,
let us now proceed to consider what was said by Lord Holt. And I must think the General
has discovered a degree of art in managing his lordship's words that is very remarkable;
and I beg the reader's patience while I develope in some detail this complicated mystery.
In order to this I must state the case of Harcourt against Fox, for this will shew
that the decision of that case, is no proof of any thing that I have ever denied,
and that General Brattle has unaccountably misinterpreted Lord Holt's words.

The act of Parliament made in the first year of William and Mary says, “the Custos
Rotulorum, or other having right to nominate a Clerk of the Peace, shall nominate
and appoint a fit Person for the same, for so long Time only as such Clerk of the
Peace shall demean himself well in his office.”

The Earl of Clare is made Custos, according to that Statute. By his deed he constituted
the Plaintiff Harcourt to be Clerk of the Peace, “to have and execute that office
so long as he did well behave himself in it.”

After this the Earl of Clare was removed, and my lord of Bedford was made Custos,
and he by his deed appointed Fox the Defendant to be Clerk of the Peace, for so long
Time as he should continue Custos, if the said Fox did behave himself well in the
Office. And the Question as stated by Lord Holt, was “Whether or no, by the amotion
of my lord of Clare from the office of Custos, Harcourt ceased to be Clerk of the
Peace? for then the Law was for the Defendant, otherwise it was for the Plaintiff.”

Lord Holt concurred with his Brothers, that Judgment should be for the Plaintiff,
and that he was still Clerk of the Peace—And after explaining his Reasons, at great
length, and with great Learning and Perspicuity, he hath these Words.

“All that the Custos hath to do in reference to this Office of Clerk of the Peace,
is to point out the Person that should have it; and as the other (i.e. the officer
appointed by the C.J.) is in by custom, so here he is in by act of parliament; the custos where [when] he hath named him, he hath executed his authority, and cannot qualify the interest,
which passeth by the act.

I am the more inclined to be of this opinion, because I knew the { 289 } temper and inclination of the parliament, at the time when this act was made; their design was that men should have places not to hold precariously, or determinable upon will
and pleasure, but have a certain durable estate, that they might act in them without
fear of loosing them; we all know it, and our places as judges are so settled, only determinable upon misbehaviour.”1

Now I would ask any impartial person, to what those words “We all know it” refer?
We all know it? Know what?—That such was the temper and inclination of that parliament, and that such was their design. Can it be said that these words refer to words that follow? We all
know it. Know what? “that our places as Judges are so settled?” —Some new kind of
grammar, logick and common sense must be invented, and applied to this paragraph,
before this construction can be adopted.

I will now repeat the words of General Brattle, “It is manifest to every one that
doth not depend upon their memory, that Lord Chief Justice Holt, one of the sages
of the law, apprehended that for the judges commissions being during good behaviour, was upon the rule of the common
law. He says after a cause had been argued upon a special verdict; after Sir T. Powis and Serjeant
Levenz had most positively affirmed, that this was the rule of the common law, not denied by the council for the other side, but rather conceded to; that in giving
his opinion upon the whole matter, we all know it, says that great lawyer, and our places as judges are so settled, only determinable
by misbehaviour.”2

Now I will ask the same impartial person, to what those words “We all know it” appear
to refer, in the foregoing words of General Brattle? We all know it. Know what? That this was the rule of the common law as Powis and Levenz had most positively affirmed.

In Lord Holt's own mouth they referred to the temper, inclination and design of parliament,
in General Brattle's writings they are made to refer seemingly, if not necessarily,
to the sayings of Powis and Levenz, and to the rule of the common law. I hope this
was the effect of haste, inadvertence, any thing rather than design in the General.

I must intreat every gentleman to look into that case of Harcourt and Fox, which is
repeated in 1 Shower, at great length, and he must be convinced that taken all together,
it makes against General Brattle rather than for him. It was determined, in that case
as it had been long before 3. Ass. p1. 93 that to hold an office during good behaviour, was to hold it for life, determinable
upon misbehaviour: this was never, and will never be deny'd by me. But it was not
determined, { 290 } that the judges offices were held so, or that the King had power to grant them so—What
was said by Lord Holt concerning the judges offices, had no direct relation to the
point then in judgment before him, which concerned only the office of clerk of the
peace. It was only said incidentally, and not explained. It might and probably did
mean no more than it was so settled by King William, in the patents he had given the
judges as far as it was in his power to settle it; and that it was the inclination
and design of the parliament and the then governing interest in the nation, that it
should be so settled by act of parliament as soon as it would bear. For it should
be here observed, that, although the friends of K. William were most numerous and
powerful, yet James had friends too—many and powerful friends, and the government
was then weak—the revolution was so recent, that they all had their fears. And the
most sagacious of King Williams friends might not choose to have this matter settled
very suddenly—they might choose that the judges should remain, subject to a revocation
of their patents, if they should fail in supporting King William, altho' they chose
to have their patents granted quam diu bene se gesserint, that they might have some
hold of the royal word and honour, in order to obtain in due time a settlement of
it by act of parliament.

Let me subjoin to this the authority of a very modern, tho' a very able and upright
judge, I mean Sir Michael Foster 394.4 “The King (Richard the second) and his ministers, soon after the dissolution of the
parliament, entered into measures for defeating this commission. One expedient was
to take the opinion of the judges upon the whole proceeding; a refuge constantly open
to a corrupt administration, though, be it spoken to the honor of the profession,
not always a sure one; even while the judges commissions were determinable, at the pleasure of the Crown.” And in page 396, We find the eighth question propounded by the King to those judges
was this, “Since the King can whenever he pleaseth, remove any of his judges and officers,
and justify or punish them for their offences; Whether the lords and commons can without
the will of the King impeach in parliament any of the said judges or officers for
any other offences.” To which the judges answered unanimously, “That they could not,
and if any one should do so, he is to be punished as a traitor.” See 1 State Trials,5 the proceedings against Chief Justice Tresillian and others.

It was said in a former paper, that the supream jurisdiction in all causes, and the
power of creating and annihilating magistrates, was an important branch of the Jura
Regalia Principis of the Feudal Law. These regalia were distributed into two principal
divisions, the regalia { 291 } majora and minora. The majora were those “quae personam et dignitatem principis et
administrationem republics concernunt, ut collatio dignitatum regalium,6 et jurisdictio summa in causis ecclesiasticis et secularibus,” as well as the “jus belli et pacis &c. et haec alias jura magistatis dicuntur.” Strykii
Examen Juris Feudalis.7

Supream sovereign jurisdiction therefore in all causes temporal and spiritual, was
one of the greater royalties, or sublimest prerogatives of the feudal princes, and
were inseparable from the feudal majesty: and they could not be granted away by the
prince to any subject, so as to be irrevocable. And the feudal law says expressly,
if an infeudation of these regalia majora should be made, “majestas divisionem non
recipiat, nec jura ab ea seperari possint; distinguendum est inter ipsum, jus, et
exercitium hujus juris; hoc alteri concedi potest, ut eodem utatur dependenter; illud veropenes principem remanet.”

Stryk. 173.

That this was one of the regalia majora. see, the Consuetudiners Feudorum, Tit. 56.
Quae sint Regaliae—Potestas constituendorum magistratuum ad justitiam expediendam.

It was this old feudal idea, that such prerogatives were inseparable from majesty,
and so incident and essential to the kingly office that not even an act of parliament
could divest it of them; which puzzled the heads of the two James's and the two Charles's,
and cost them and the nations they governed, very dear. It was this which was intended
by Sir Edward Herbert and his brothers, who determined for Sir Edward Hale's case
mentioned in a former paper,8 and gave their opinions and made it a general rule in law that the dispensing power,
was an incident inseperable prerogative of the Kings of England, as of all other sovereign
princes; and that this was not a trust invested in and granted to the King, but the
ancient remains of the sovereign power of the Kings of England, which was never yet taken from them nor can be.

The way is now prepared for the most important question of all.

General Brattle declares his opinion in very strong terms, “that the Governor and
Council cannot legally or constitutionally remove a justice of the superior court,
as the commissions now are, unless there is a fair hearing and trial, and then a judgment
that he hath behaved ill.”

This, I am content to make a question, after premising, that we ought in such enquiries,
always to obtain precise ideas, and to give exact definitions of the terms we use,
in order to arrive at truth. The { 292 } question then appears to me to be different from what it would be, if we were to ask
whether a justice of that court can be constitutionally removed without a trial and judgment? Many people receive different ideas from the
words legally and constitutionally. The law has certainly established in the crown many prerogatives,
by the bare exertion of which, in their utmost extent, the nation might be undone.
The prerogatives of war and peace, and of pardon, for examples, among many others.
Yet it would be absurd to say that the crown can constitutionally ruin the nation,
and overturn the constitution. The British constitution is a fine, a nice, a delicate
machine, and the perfection of it depends upon such complicated movements, that it
is as easily disordered as the human body. And in order to act constitutionally every
one must do his duty. If the King should suffer no parliament to sit for 12 years,
by reason of continual prorogations, this would be an unconstitutional exercise of
prerogative. If the commons should grant no supplies for 12 years, this would be an
unconstitutional exertion of their privilege. Yet the King has power legally to do
one, and the commons to do the other. I therefore shall not contend with General Brattle,
what the Governor and Council can constitutionally do, about removing justices, nor
what they can do in honor, integrity, conscience, or Christianity. These things I
shall leave to the internal sentiments of future Governors and Councils: And shall
confine myself to the question, whether they can legally remove a judge.

And it is with great reluctance that I frankly say, I have not been able hitherto,
to find sufficient reason to convince me, that the Governor and Council have not,
as the law now stands, power to remove a judge as the commissions now are, without
a trial and judgment, for ill behaviour.

I believe it to be true that the judges, in all King William's reign, had their commissions
quam diu se bene gesserint: Our Charter, and our Province Law erecting the Superior
Court, were made in that reign. In the charter the King grants power to the Governor
with advice and consent of Council to nominate judges, &c. and to the General Court
to erect Judicatories, &c. and that “all and every of the subjects of us, our heirs
and successors, which shall go to and inhabit within our said province and territory,
and every of their children which shall happen to be born there, or on the seas in
going thither, or returning from thence, shall have and enjoy, all liberties and immunities
of free and natural subjects within any of the dominions of us, our heirs and successors,
to all intents, constructions and purposes { 293 } whatsoever, as if they and every of them were born within this our realm of England.”9

Now admitting for arguments sake, that the judges in England in that reign held their
offices legally for life, determinable upon mis-behaviour, and that it was by law
in that reign a liberty, of free and natural subjects born within the realms, that
the judges should hold such an estate in their offices, what will be the consequence?
Will it not be, that the Governor and Council, have power by charter and by law, to
grant their commissions quam diu se bene gesserint? And that if the Governor and Council
should grant their commissions in that manner, the judges would have estates for life
in their offices. But will it follow, that they have such estates, if the Governor
and Council do not grant them in that manner? Here then, if these principles are all
just, let the just consequence be drawn; let the Governor and Council, I speak with
humble defference and submission, issue the commissions to the judges, quam diu se
bene gesserint; and if that is declined, let the province, I speak with all possible
respect again, make their humble supplications to his Majesty that his Governor may
be permitted, or instructed if you will, to grant them in that manner. I fear there
is too much reason to think, as no judicature can be created but by the legislature,
and the jurisdiction must appear in the erection, and as no judge at common law, or
by the law of the province, can hold an office but by commission, that the duration
of the judges office or estate must appear in the commission itself.

However, all this reasoning in favour of an estate for life in our judges, is built
upon this principle, that Lord Holt and the judges in England, under King William,
had estates for life, by law in their offices. And this principle implies, that the
Crown at common law had authority to make judges to hold for life, or at will, at
its pleasure, which is a problematical doctrine at least. Some of the passages of
law and history which I have quoted in former papers, seem to be evidence, that at
sometimes the houses of parliament, and some of the ministers of the law had such
an apprehension, but a multitude of others, produced in the same papers betray an
apprehension of the contrary. But I don't recollect a single circumstance in law or
history, that favours the opinion that a judge there had an estate for life, without
the words quam diu se bene gesserit, in his commission.

General Brattle took the right way of establishing the independency of our judges,
by affirming that they had estates for life, by their nomination and appointment,
and by common law, whether their commissions expressed quam diu se bene gesserint
or not, or whether they { 294 } had any commissions at all or not. And if he could have proved these allegations,
he would have got his cause. But he has been extreamly unfortunate, in having Bracton,
Fortescue, Coke, Foster, Hume, Rapin and Rushworth, directly against him, and nothing
in his favour, but the say of a lawyer in arguing a cause for his client, and that
say by no means so extensive as the General's assertions—for Powis himself don't say
the judges at common law were in for their lives, without the clause quam diu se bene
gesserint in their commissions. The questions that have been considered are liberal
and of much importance. I have done little more than labour in the mines of oar and
the quarries of stones. The materials are at the service of the public; and I leave
them to the Jeweller and Lapidary, to refine, fabricate and polish them.

[signed] JOHN ADAMS

1. Holt's opinion is given in Shower, Reports, 1:527–536, the passage concerning the “temper and inclination of the Parliament”
being on p. 535.

4. Sir Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery
for the Trial of the Rebels in the Year 1746 in the County of Surry . . . , Oxford, 1762. Entered in Catalogue of JA's Library.

5. A New Abridgement and Critical Review of the State Trials . . . The case cited begins on p. i; the relevant passage is on p. 4.

VII. To the Boston Gazette

[dateline] [Monday, February 15, 1773]

[salute] To the PRINTERS.

We are now upon the commissions of our own Judges, and we ought to examine well the
tenure by which they are holden.

It may be depended on, that all the commissions of Judges throughout America, are
without the words quam diu se bene gesserint in them; and consequently, that this
horrid fragment of the feudal despotism, hangs over the heads of the best of them
to this hour. If this is the case, it is a common and a serious concern to the whole
continent: And the several provinces will take such measures as they shall think fit,
to obtain a better security of their lives, liberties, and properties. One would think
there never could happen a more favourable opportunity, to procure a stable tenure
of the Judges offices, { 295 } than the present reign, which was begun with his Majesty's most gracious declaration
from the throne, “that the independency and uprightness of the Judges, was essential
to the impartial administration of justice.”1 However, let us return and confine ourselves to this province. Our Judges commissions,
have neither the clause quam diu se bene gesserit, nor the clause durante beneplacito,
in them. By what authority, and for what reasons, both these clauses, were omitted,
when the commission was first formed and digested, I know not; but the fact is certain,
that they are not in it. But will it follow that because both clauses are omitted,
therefore the judges are in for life? Why should it not as well follow that they are
in only at pleasure? Will it be said that the liberty of the subject and the independency
of the Judges is to be favoured; and therefore as there is no express clause to determine
it otherwise, it must be presumed to be intended for life. If this is said, I answer,
that by all rules common law, is to be favoured, and therefore whatever was the rule
at common law must be favoured in this case, and if the judges at common law were
in only at pleasure, it will follow that ours are so to, without express words, for
there is no rule more established than this, that the prerogative is not to be taken
away without express words; and that the King's grant is to be construed most favourably
for the King, when it has not the clause ex mero moto, specialia gratia, et certa
scientia in it, as these commissions have not.

Why should the omission of both clauses, make the commissions during good behaviour,
in the case of a superior judge, any more than in the case of a justice of the peace.
The commission of a justice of the peace here is without both clauses, as much as
the commission of a judge, yet it never was pretended here that a justice of peace
might not be removed, at pleasure, by the Governor and council, and without an hearing
and judgment that he had misbehaved.

And I suppose it to be clearly settled so in England. By the form of the commission
of the peace in England, which we have in Dalton c. 5, and in 3 Burn. Tit. Justices
of the peace, 1 Shaw's Inst. 13. 16. 172 —We find that both these clauses are omitted, out of that commission, which was settled
and reformed as it there stands by Sir Christopher Wray Chief Justice of England,
and all the other Judges of England in the 32 and 33 Eliz. upon perusal of the former
commission of the peace, and often conference within themselves.

Yet these commissions are determinable at pleasure. See Dalton's Justice, c. 3. These
commissions of the peace, their authority doth determine by diverse means, yet more
usually by three means, 1. { 296 } by the death of the King, or by his resignation of his crown: for by the commission
he maketh them justiciarios nostros, so that he being once dead, or having given over
his crown, they are no more his justices, and the justices of the next Prince they
cannot be, unless it shall please him afterwards so to make them. 2. At the King's
pleasure, and that in two sorts, 1. Either by the King's pleasure expressed (as the
King by express words may discharge them by his writ, under the great seal) or by
supersedeas: but the supersedeas doth but suspend their authority, which may be revived
by a procedendo. 2. or by implication; (as by making other commissioners of the same
kind, and within the same limits, leaving out the ancient commissioner's names). See
Dalton, Burn, or Shaw.

Thus the argument arising from the omission of the clause in our Judges commissions
of durante beneplacito, seems to have no weight in it, because the same clause is
omitted from the commission of the peace both at home and here, and yet the commission
has been settled at home to be determinable, at the pleasure of the King, and here
at the pleasure of the Governor and Council, particularly in a late instance, which
General Brattle may possibly remember.

Let us now proceed to consider with more particular attention the principle, upon
which all colourable pretensions of establishing the independency of our Judges, is
founded. The principle is this, that Lord Holt and his brothers under King William
had legal estates for life in their offices, determinable only on misbehaviour, and
the demise of the Crown, tho' I apprehend, that even this principle will not serve
the purpose—It is true, that if this principle is admitted, it will follow, that the
Governor and Council here have power to issue the commissions, quam diu se bene gesserint,
but it will not follow, that by law they are bound to do that, because King William
was not bound by law to do it in England. If King William had his election, to grant
commissions, quam diu se bene gesserint, or durante beneplacito, then the natural
subjects, born within the realm, had not a right to have the judges patents granted
quam diu se bene gesserint, unless the King pleased. It is true upon this supposition
that they had a right, to have them granted so if they were happy enough to perswade
the crown to grant them so; not otherwise.

The same right and liberty, will belong to the subject in this province. Not a right
absolutely to have the judges commissions granted quam diu se bene gesserint, but
to have them granted so if the governor and council saw fit, and could be prevailed
on to do it.

And on the other hand, if King William had power to grant the { 297 } commissions either way as he pleased, it will follow that the governor and council
have power to grant them either way. And if this is true, it is to be hoped General
Brattle, will have influence enough, to prevail that the commissions for the future
may be granted expressly quam diu se bene gesserint. But until that is done, even
upon these principles, our judges hold their places only at will.

However, we must examine yet further, whether the crown, in King William's time or
any other, ever had its election, to grant the patents either way?

Lord Coke's authority has been quoted before, several times, and it seems to be very
explicit, that a grant of a judicial office for life, which had usually been granted
at will is void. 2. Hawkins, p. c. 2 ss. 5.3 “Nay it is said by some, that the king is so far restrained by the ancient forms
in all cases of this nature, that his grant of a judicial office for life, which has
been accustomed to be granted only at will is void.” And in ss. 6. “And the law is
so jealous of any kind of innovation in a matter so highly concerning the safety of
the subject, as not to endure, any, the least deviation from the old known, stated
forms, however immaterial it may seem, as will be more fully shewn. c. 5. ss. 1.”

I have not been able to find any direct adjudication, of any of the courts of common
law or any absolute determination of all the judges in the exchequer chamber, that
a grant to a judge of king's bench, or common bench, quam diu se bene gesserint is
void, but besides what is before cited from Coke and Hawkins, it is certain, that
whenever such grant has been made, the king who made it considered it as void. King
Henry thought it was void, when he threw off his faithful Hubert de Burgo, Charles
the first thought it void, and so did his parliament, in 1642, as appears by the twelfth
article transmitted by them to the king at York, and Charles the second, and James
the second, thought it void, as appears many ways by their displacing Judge Archer
and others. And it appears also by King Charles's displacing the earl of Clarendon,
for there is no reason, why a grant of the office of chancellor for life should be
void, as Lord Coke says expressly that it is, and a grant of the office of chief justice
in the same manner be good.

1. Sid. 338. Mich. 19. car. 2. B. R.4 “Note that this vacation Sir Edward Hyde Earl of Clarendon and Lord Chancellor of
England was deposed by the king from being chancellor, altho' he had a patent for
his life, because the taking away of the seal is a determination of the office, as
4 inst.”

Here the grant for life is considered as void, and Lord Coke's authority is quoted
for it. I suppose where he says a grant of the office of chancellor for life is void
because it never was so granted, i.e. as I understand it, it never was customarily
granted. For it is not literally true, that it never was so granted. It has been granted
for life, almost if not quite as often, as the judges offices ever were before the
Revolution. It may be proper to shew this.

Thomas Lord Ellesmere, in his observations concerning the office of the Lord Chancellor,5 p. 15. says, “The election or creation of chancellors and keepers, &c. was of more
than one sort. Sometimes and for the most part the chancellor was elected by the king
durante beneplacito, and put in power of his office by the delivery of the seal, and
sometimes the chancellor was made by patent to hold that place or office during his life, as Walter Grey bishop of Chester6 in the time of king John, and others, some, and the most part elected by the king
only; some had patents of the king, and were confirmed chancellors by consent of the
three estates, as were Ralph Nevil, bishop of Chester7 in the time of king Henry the third, with whom the prince being offended as reports
Matthew Paris, and demanding the seal at his hands, he refused to yield the same unto
him, affirming that as he had received it by the common consent of the nobility, so
he would not, without like warrant resign the same, and in the days of the same king,
it was told him by all the Lords spiritual and temporal that of ancient time, the election and disposition of the chief justice, chancellor and treasurer, belonged
to the parliament, and although the king in displeasure, did take the seal from him,
and deliver[ed] the same to the custody of others, yet did the aforesaid Nevil remain chancellor
notwithstanding, and received the profits thereof, to whom the king would have restored
the seal, but he refused to receive it.”

Here let me observe that I have a long time expected from General Brattle some such
authority as this; for I believe it was in the mind of Sir Thomas Powis, when he said
by the ancient constitution, my lords the judges were in for their lives. But let
it be considered, that there is no remaining record that the lords spiritual and temporal
told the king so, nor any legal authority, to prove it, nor any other authority for
it, but Matthew Paris, whose writings are not sufficient evidence of this; let it
also be considered, that this king Henry would probably have been obliged, to insert
a clause in his Magna Charta to secure this privilege, if the claim of it had been
then thought to be well founded, and as this was not done, it is most likely, (admitting
Matthew Paris's fact to be true,) that the lords spiritual and temporal { 299 } meant no more than this, that some king of ancient time, had in some few instances,
condescended to take the advice of his wittenagemote, or assembly of wisemen, concerning
the appointment and removal of such officers: But a few particular examples of royal
condescension could form no established rule, and according to the notions of those
feudal ages, could never alienate from the prince, any of his regalia majora.

Lord Ellesmere goes on, “And let us note by the way, three several patents were granted
unto this Ralph Nevil, two whereby he is ordained to be chancellor, and the third
for the custody of the seal, all remaining among the records of the tower, in haec
verba.”8

And in page 13,9 Lord Ellesmere says, “Sometimes the chancellors of England were elected by the nobility,
as Nicolas of Eli was made chancellor by the barons; but this seemed a usurpation
by them, for they were afterwards, the most of them most sharply chastized, and the
said Nicolas deprived by Henry the third, disdaining to have officers of that estate
appointed him by his subjects.”

Thus we see that a few examples of appointments for life to the office of chancellor,
have not been sufficient to establish the power of the crown to grant it in that manner,
but it is often said in our books to be void, and in the case of Lord Clarendon was
presumed to be so. Why then should a few examples of judges constituted quam diu se
bene gesserint, in the reigns of Charles the first and second, and king William determine
them to be good?

I think it has been determined by all the judges of England, that time of memory should
be limited to the reign of king Richard the first, and every rule of common law, must
be beyond the time of memory, that is as ancient as the reign of that king, and continued
down generally until it is altered by authority of parliament.

Sir James Dyer at the end of his reports,10 fol. 378, has given us the names of all the chief justices of the King's bench, from
the twenty second year of Edward the third to the sixteenth year of Queen Elizabeth,
viz. Thorp, Shareshull, Green, Knyvett and Cavendish under Edward the third—Tresillian
and Clopton under Richard the second—Gascoign under Henry the fourth—Hankford under
Henry the fifth—Cheney [Cheyne], June [Inyn] and Fortescue under Henry the sixth—Markham and Billing under Edward the fourth—Hussey
under Richard Third—Fineux [Fyneux] under Henry the seventh—Montague, Leister [Lyster] and Cholmley, under Henry the eighth—Bromeley, Portman and Saunders under Queen Mary—Catlyne
[Catlin] and Wray under Elizabeth.

And also the names of all the chief justices of the common pleas from the year 1399,
viz. the last year of the reign of Richard the second, to the twenty fourth of Queen
Elizabeth, viz. Heiringe [Thirning] under H. 4. Norton H. 5. Babington, Joyn [Inyn], Cosmore [Cotesmore], Newton and Prisot under H. 6. Danby and Brien [Bryan] E. 4. Woode, Frowicke [Frowyk] and Rede H. 7. Erneley [Ernle], Briednell [Brudenell], Norwiche, Baldwin, Montague, H. 8. Morgan, Brooke and Browne P. and Ma. Dyer and
Anderson, Eliz.

The writs or patents of all these chief justices remain enrolled, in the courts of
King's bench and common pleas, and also enrolled in chancery, and every one of them
is durante beneplacito—as I conclude, because Dyer has given us the tenure of his
own commission, Rep. 150. p. 159. a. Ego Jac. Dyer, constitutus fui unus justiciariorum
ad placita coram rege et regina tenenda, per L. patentes gerentes datum apud Greenwich
23 die Aprilis, durante beneplacito Regi, &c.—and because, the foregoing lists and
the records from whence they were taken, were familiarly known to Sir Edward Coke,
and he says that form had been used and approved without any variation for many successions
of ages, even from the time of Edward the first, and long before. It may therefore
be safely affirmed, that there is no record of any justiciary, or chief justice of
king's bench or common pleas, whose writ or patent was not durante beneplacito, quite
down to the year 1640, in the reign of Charles the first. I say there is no record
of any, because the story of Hubert de Burgo has no record extant to { 301 } prove it, and rests upon no better evidence than Matthew Paris, which in our present
view of the matter, is no evidence at all, because he is no legal authority.

If there is no record therefore extant to warrant the crown in granting patents to
the Judges quam diu se bene gesserint anterior to 1640, it is in vain to look for
any adjudg'd case, that a patent so granted is good, anteriour to that period, and
I am equally confident to say there has been none since.

There is a case in the year books, which was quoted by the attorney general in the
argument of the case of Harcourt against Fox, to prove that a grant quam diu se bene
gesserit conveyed a Franktenement—But common sense without a judicial decision would
be sufficient to determine that. It is but the necessary, natural import of the words.
If a man has a lease of a house as long as he behaves well, if he behaves well as
long as he lives he must hold the house as long as he lives. That case is in 3 Ass.
pl. 9. That part of it which is to our present purpose is no more than this. “Note
that a grant of rent to be paid another, as long as he wills, or pleases, is a freehold
clearly enough, sicut dominus rex concessit alicui aliquam ballivam vel hujus modi,
donec bene et fidelitur se gesserit in officio illo.”

It is easy to see that this is no adjudication that the King's grant to a Judge of
King's bench or common pleas quam diu se bene gesserit is good and valid, and I believe
it may be depended on that there never was such a judgment in Westminster Hall.

I have heretofore mentioned several instances, of great, wise and honest Judges, falling
victims at the royal nod, and giving place to others, much their inferiors in all
respects. To these let me add the case of the learned, firm and upright Chief Justice
Pemberton, who in the thirty fourth year of Charles the second, was obliged to descend
from the chief seat in the King's bench into the common pleas, to make way for the
cunning chicanery of Sanders, who was elevated to his place, in order to carry some
court points, and in the next year, the great and honest man was deposed from his
place in the common pleas, and after having been chief justice of both benches, was
necessitated to take a place again at the bar, and to bear the sneers and raileries
of young mooting barristers, who tho't to recommend themselves at court by insulting
him.

And here I cannot forbear introducing a curiosity. It is the speech of the lord chancellor,
to Sir Henry Montague, when he was sworn chief justice of the king's bench, in the
room of a man much greater and better, I mean Lord Coke. It is found at length in
Sir Francis { 302 } Moor's reports11 826, 7, 8, 9.—and I mention it because it is fraught with lessons of instruction.
It shews the tendency of holding offices at pleasure. It shews what sordid, nauseaous
and impious adulations to superiours, what malicious, envious, and cruel invectives,
against honest Coke, or any other brave and honest man, whom the courtiers are determined
to hunt down, are inspired by this dependent state of mind. It shews what a deep,
and lively sense they had upon their minds of their dependance, every moment of their
existence, upon royal will;—and how carefully they cultivated in one another, as the
highest virtue, this base servility of spirit.

“The King's Majesty, (says the chancellor to Sir Henry Montague,) in the governing
of his subjects, representeth the divine Majesty of Almighty God; for it is truly said of God, that infima per media ducit ad summa, &c.” —“You are
called to a place vacant, not by death or cession, but by amotion and deposing of him that held the place before you, by the great king James the great king of
Great-Britain, wherein you see the prophet David['s] words are true, he putteth down one, and setteth up another, a lesson to be learned of all, and to
be remembered and feared of all that sit in judicial places, &c. It is dangerous in a Monarchy, for a man holding a high and eminent place, to
be ambitiously popular: take heed of it.

“Remember Sir Edward Montague your worthy grand-father. You are called to succeed
him in this high place, and called thereunto upon amotion and deposing of another, by the great judgment and wisdom of the great king of Great-Britain,
whose royal virtues will be admired to all posterity.” Then follows much abuse upon
honest Coke.

“Your grand-father doubted not, but if the King by his writ, under the great seal,
commanded the Judges that they should not proceed rege inconsulto, then they were
dutifully to obey, and to consult with the king not in this Court but in another,
that is the court of chancery.

“Remember also, the removing and putting down, of your late predecessor, and by whom, which I often remember unto you, that is by the great King of Great Britain, whose
great wisdom, royal virtues and religious care, for the weal of his subjects, and
for the due administration of justice, can never be forgotten, but will remain admirable
to all posterity.” —Who would think that this was a James!

“Comfort yourself with this that sithe the King's Majesty hath enabled you, who shall
or can disable you.”

Let us here subjoin a few clauses more from Hawkins, Book 2. c. 5. ss. 2. “All such
justices must derive their authority from such in• { 303 } struments as are of a known, stated and allowed form, warranted by ancient precedents;”
&c. “It seems clearly to be agreed by all these books that the best rule of judging
of the validity of any such commission is their conformity to known and ancient precedents.”

ss. 4. “Such commissions may be determined expressly or implicitly; expressly by an
absolute repeal or countermand from the King, &c.”

[signed] JOHN ADAMS

1. 1 George III's speech to the Houses of Parliament, 3 March 1761 (Ann. Register for 1761, p. 243).

2. Michael Dalton, The Country Justice, London, 1746, and Richard Burn, The Justice of the Peace and Parish Officer, 3 vols., London, 1762, are both entered in Catalogue of JA's Library. The printer misread JA's abbreviation for the third work cited, Joseph Shaw, The Practical Justice of Peace, 2 vols., London, 1728. JA probably wrote “Shaw's Just.” The page references are misprinted as well; the pertinent
material appears in vol. 1:3–7.

3. William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. in 1, London, 1762. Entered in Catalogue of JA's Library. Passages quoted in this paragraph are from vol. 2, chs. 2 and 5.

5. The page references given here correspond to those in Certaine Observations Concerning the Office of Lord Chancellor, London, 1651, which carried the name of Sir Thomas Egerton, Baron Ellesmere, on
the titlepage. Although this attribution was accepted in JA's lifetime, modern scholars have questioned Ellesmere's authorship of the treatise
(DNB).

11. Cases Collect & Report per Sir Fra. Moore, Chevalier, Serjeant del Ley, London, 1663. For the significance of JA's use of this collection in his research in early 1773, see Debate between Hutchinson
and the House of Representatives, 26 Jan. – 2 March, below.

Docno: ADMS-06-01-02-0096-0009

Author: Adams, John

Recipient: Boston Gazette (newspaper)

Date: 1773-02-22

VIII. To the Boston Gazette

[dateline] [Monday, February 22, 1773]

[salute] To the PRINTERS,

In all General Brattle's researches hitherto, aided and assisted as he has been by
mine, we have not been able to discover, either that the judges at common law had
their commissions quam diu se bene gesserint, or for life, or that the crown had authority
to grant them in that manner. Let us now examine and see, whether estates for life,
determinable only on misbehaviour or the demise of the Crown, can be derived to the
Massachusetts Judges from any other source? If they can, they must be from the Charter,
from the nomination and appointment of the Governor with the advice and consent of
council, { 304 } from the judges commissions, or from the law of the province; from one, or more, or
all these together, they must be derived, if from any thing. For as the judges of
the King's bench and common bench, are in by the King's grant or by custom or both,
as justices of oyer and terminer, goal delivery, &c. are in by the King's grant as
the clerk of the peace, is said by Lord Holt in the case of Harcourt against Fox,
to be in by the act of parliament 1 Wm. and Mary, and the officers whose places are
in the gift of the chief justice, are in by the custom, so the Massachusetts Justices
are in by one or more or all of the four titles mentioned above.

And here the first inquiry is, what is meant by an officer's being in by custom or
by statute, &c.? And I suppose the true answer to be this, He is invested with his
powers, is obligated to his duties, and holds his estate by that custom or statute,
&c. And the next inquiry is, by what are our judges in? that is by what act, or instrument,
are they cloathed with their power, bound to their duties, and intitled to their estates?

By the Charter, there are no certain powers given them, no certain duties prescribed
to them, nor any certain estate conferred upon them. The Charter impowers the Governor,
with advice and consent of Council, to nominate and appoint them, that is, to designate
the persons; nothing more.

There are three sorts of officers in the charter. Those reserved to the nomination
of the King, as the Governor, Lt. Governor, Secretary, and Judge of Admiralty. And
it is not limited how long they shall continue, excepting the first Secretary Addington,
and he is constituted expressly during pleasure;1 and the duration of all these officers, has been limited ever since, expressly by
their commissions, to be during pleasure. The second sort of officers in the charter
are those which the General Court are to name and settle, and the charter expressly
says they shall be named and settled annually, so that their duration is ascertained
in the charter. The third sort are those which the Governor with advice and consent
of Council, is to nominate and appoint—And there are no duties imposed, no powers
given, no estates limited to these in the charter. But the power of erecting judicatories,
stating the rights and duties, and limiting the estates of all officers, to the council
and courts of justice belonging, is given to the General Court, and the charter expressly
requires, that all these courts shall be held in the King's name, and that all officers
shall take the oaths and subscribe the declarations appointed to be taken and subscribed,
instead of the oaths of allegiance and supremacy. And it is in observance of { 305 } this requisition in the charter, viz. That all courts shall be held in the King's
name, that the Judges commissions are in the King's name. The governor and council
designate a person, not to be the governor and council's justice, but the King's justice,
not of the governor and council's court, but of the King's court. And the law of the
province requires that the Justices of the Superiour Court should have a particular
species of evidence, of their nomination and appointment, viz. a commission, otherwise
as General Brattle says, a nomination and appointment recorded, would be enough. And
here I cannot refuse myself the pleasure of observing that the opinion of Mr. Read,
concurred with, and I humbly conceive was founded on these principles. Governor Belcher
perswaded the council, that upon the appointment of a new governor, it was necessary
to renew all civil commissions, and the same thing was proposed in council by his
successor: But Mr. Read, who was then a member of the council, brought such arguments
against the practice, that the majority of the board refused to consent to it, and
it never has been done since. 2. Mass. Hist. 375, 6.2 This was an important service rendered his country by that great lawyer and upright
man, and it was grounded upon the principles I have mentioned. Civil officers are
not nominated to be the governor's officers, they don't hold their courts nor commissions
in his name, but in the King's, and therefore governors may come and go, as long as
the same King reigns, and they continue the same officers. And in conformity to the
same principles, upon the demise of the crown, the commissions must be renewed, because
the charter requires they should be in the King's name. The words are, “in the name
of us, our heirs and successors” and therefore upon the accession of an heir apparent,
i.e. after 6 months from his accession, the commissions must be renewed, otherwise
they cannot be held in his name, nor the requisition in the charter complied with.
I said in 6 months, because the statute of 6 Ann, c. 7 ss. 8. not the statute of the
present King's reign (as General Brattle supposes)3 has provided that no office, place or employment, civil or military, within the kingdoms
of Great-Britain or Ireland, dominion of Wales, town of Berwick upon Tweed, Isles
of Jersey, Guernsey, Alderney or Sarke, or any of her Majesty's plantations, shall
become void, by reason of the demise or death of her Majesty, her heirs or successors,
Kings or Queens of this realm; but every person, &c. shall continue in their respective
offices, places and employments, for the space of six months next after such demise
or death, unless sooner removed and discharged by the next in succession as aforesaid.

But to return, our Judges are not in merely by nomination and appointment of the Governor
and Council, because they are not bound to their duties, nor vested with their powers
by the charter immediately nor by that nomination and appointment. They are not in,
by the grant of the king merely or by their commissions, because their court is not
erected, their powers are not derived, their duties are not imposed, and no estate
is limitted by that grant. But their commission is nothing more than a particular
kind of evidence, required by the province law, to shew their conformity to the charter
in holding their court in the king's name, and to shew their nomination and appointment,
or the designation of their persons to those offices by the governor and council.

It is the law of the province, which gives them all the powers and imposes upon them
all the duties of the courts of king's bench, common pleas, and exchequer; but it
does not limit to them any estate, in their offices. If it had said as it ought to
have said, that they shall be commissionated quam diu se bene gesserint, they would
have been so commissionated, and would have held estates for life in their offices.

Whence then can General Brattle claim for them an estate for life in their offices?
No such estate is given them by the charter, by their nomination and appointment,
by their commissions, nor by the law of the province.

I cannot agree with General Brattle, that “supposing a corrupt Governor and a corrupt
Council, whether the words in the commission are so long as the Governor and Council
please, or during good behaviour, will just come to the same thing.” Because in the
one case a judge may be removed, suddenly and silently, in a Council of seven only;
in the other, not without an hearing and tryal, and an opportunity to defend himself
before a fuller board, knowing his accuser and the accusation: And this would be a
restraint even to corruption itself, for in the most abandoned state of it, there
is always some regard shewn to appearances.

It is no part of my plan, in this rencounter with the General, to make my Compliments
to his Excellency Governor Hutchinson and the present Council: But I may be permitted,
to say that the Governor differs in sentiment, from his Major General, about the power
of the Governor and Council. In a note in the second volume of the history of the
Massachusetts-Bay, we have these words, “The freedom and independency of the judges
of England, is always enumerated among the excellencies of the constitution. The Massachusetts
judges are far from independent. In Mr. Belcher's administration, they were { 307 } peculiarly dependent upon the Governor. Before and since they have been dependent
upon the Assembly for their salary granted annually, which sometimes has been delayed,
sometimes diminished, and rarely escapes being a subject of debate and altercation.
The dependency in Mr. Belcher's time, is attributed to the pusillanimity of the Council,
as no appointment can be made without their advice. And we are told too that the emoluments
of a Massachusetts Counsellor are very small, and can be but a poor temptation to
sacrifice virtue.”4

All this however has been found in many instances, by experience to be but a poor
consolation to the people. Four gentleman, a majority of seven, have since Mr. Belcher's
day, been found, under the influence of the same pusillanimity, and for the sake of
those emoluments, small as they are, or some other emoluments, have been seen to sacrifice
virtue. And it is highly probable men will be composed of the same clay, fifty years
hence, as they were forty years ago, and therefore they ought not to be left exposed
to the same temptations.

The next thing observable in the General's last publication, is this, “The parliament
grants” (says he) “no salaries to the judges of England, the King settles the salaries
and pays his judges, out of the civil list.” How is it possible this gentleman should
make such mistakes? What is the King's civil list? Whence do the monies come to discharge
it? Is it a mine of gold? A quarry of precious stones? The King pays the judges! Whence
does he get the money? The Crown, without the gift of the people is as poor as any
of the subjects. But to dwell no longer upon an error so palpable and gross, let us
look into the book. The act of parliament of the 12 and 13 Wm. 3d, expressly enacts,
that the judges salaries shall be ascertained and established, meaning no doubt at
the sums, which had then usually been allowed them. And another act of parliament
was made in the 32d year of George the second, c. 35. augmenting the salaries of the
puisne judges five hundred pounds each, and granting and appropriating certain stamp
duties to the payment of it—With what colour of truth then can the General say that
parliament grants no salaries, but that the King settles the salaries?

Another thing that follows is more remarkable still. “The act of parliament” (says
the General, meaning the late act impowering the Crown to appropriate monies, for
the administration of justice, in such colonies, where it shall be most needed) “was
made for no other reason than this, that the King might not pay them, (i.e. the judges)
out of the civil list, but out of another fund, the revenue.” The General seems to
have in his mind a notion that the King's civil { 308 } list is, a magazine of gold and silver, and the Crown a spot where diamonds grow.
But I repeat it, the Crown has no riches but from the gifts of the people.

The civil list means an enumeration of the King's civil officers and servants, and
the sums usually allowed them as salaries, &c. But the money to discharge these sums
is every farthing of it granted by parliament. And without the aid of parliament,
the Crown could not pay a porter.

Near the beginning of every reign the civil list revenue is granted by parliament.
But are the Massachusetts Judges in the King's civil list? No more than the Massachusetts
major-general is. If a minister of state, had taken money from the civil list revenue
to pay our Judges, would it not have been a misapplication of the public money? Would
it not have been peculation? And in virtuous times, would not that minister have been
compelled to refund it out of his own pocket? It is true, a minister, who handles
the public money, may apply it to purposes for which it was never intended nor appropriated.
He may purchase votes and elections with it, and so he may rob the treasury chests
of their guineas, and he has as good a right to do one as the other, and to do either,
as to apply monies appropriated to the king's civil list, to the payment of salaries
to the Massachusetts Judges.

Without the late act of parliament therefore, as the King could not pay our Judges
out of the civil list, because the King can do no wrong, he could not pay them at
all, unless he had given them presents out of his privy purse. The act must therefore
have been made to enable the King to pay them; with what views of policy, I leave
to be conjectured by others.

I am very nearly of a mind with the general, that a lawyer who holds the Judges offices
here to be during good behaviour, must do it, upon his principles, because I can see
none much more solid to ground such an opinion upon. But I believe his principles
appear by this time, not to be infallible.

The General solemnly declares, that Mr. Reed, held this opinion, and upon, his principles.
Mr. Reed's opinion deserves great veneration, but not implicit faith; and indeed if
it was certain that he held it, what resistance could it make against the whole united
torrents of law, records and history? However, we see, by the report, the general
was pleased to give the public of Lord Holt's words, that it is possible for him to
mistake the words and opinions of a sage; and therefore it is possible he may have
mistaken Mr. Reed's words as well as his lordships.

I believe the public is weary of my speculations, and the subject of them. I have
bestowed more labour upon General Brattle's harangue in town-meeting, and his writings
in the news-paper, than was necessary to shew their Imperfection: I have now done
with both—and subscribe myself, your's, General Brattle's, and the Public's well-wisher
and very humble Servant,

Editorial Note

While John Adams was concluding his long series of replies to William Brattle on the
independence of the judges, he was engaged with others in a more direct effort to
assert in the winter of 1773 the rights of the province. He played a vital part in
framing the response of the House of Representatives to two messages sent down to
the General Court by Gov. Thomas Hutchinson, and his efforts show the development
of his political thought.

The exchanges between Hutchinson and the two legislative houses { 310 } between 6 January and 6 March arose from the same basic issue which had drawn Adams
into debate with Brattle: the extent of Parliament's authority. The Votes and Proceedings of the Boston town meeting of 20 November 1772, occasioned by the application of
royal revenues to the payment of judges' salaries, had so stirred the Massachusetts
towns, among which it had been circulated, that the Governor decided to clear the
air with a public examination of the underlying question of Parliament's authority
in the colonies. (For a discussion of Hutchinson's reaction to the reception accorded
Boston's protest, see Bailyn, Thomas Hutchinson, p. 206–207; Brown, Revolutionary Politics, p. 85–86.) As Hutchinson saw it, Bostonians had based their protest on two false
assumptions—that charter rights protected them from the exactions of Parliament, and
that there was a deliberate conspiracy against the rights of colonists. Unchallenged,
these assumptions must lead to a “total separation from the kingdom, by their independency
upon Parliament, the only bond which could keep them united to it” (Massachusetts Bay, ed. Mayo, 3:266). And through a circular letter, Massachusetts would spread these principles
to other colonies (Hutchinson to Dartmouth, 7 Jan. 1773, Docs. of Amer. Rev., 6:44).

Recognizing the dangers of public debate, but confident of his own ability to show
the fallacies of the whig position, and lacking any instruction from the home government,
Hutchinson felt he had to go ahead. To a specially called joint session of the General
Court, he explained his position on the principles of the constitution under which
the colony must operate. (Hutchinson's message of 6 Jan. is printed in Mass., House Jour., 1772–1773, p. 138–143.) He welcomed, he said, a response to his argument and promised
to consider objections. Never had a Massachusetts governor so courted debate on basic
principles with the General Court.

Nothing Hutchinson said was new or original; he had explained his views on earlier
occasions. The burden of his message was submission to the supreme authority of Parliament;
that clause in the charter allowing the provincial legislature to make “such Laws
as are not repugnant to the Laws of England” meant that Parliament had a reserve power
to bind the colonies by its laws. Despite the charter's guaranteeing to colonists
the rights of Englishmen, these rights could not be identical with those enjoyed by
Englishmen still at home. Citizens of Massachusetts by their location had relinquished
the right of electing members to Parliament, for example. A natural right of consent
to Parliament's acts was no justification for denying that body's right to govern
them and insisting that the General Court was the only legitimate lawmaking body.
Nor could there be two independent legislative bodies in a single state. The only
alternative to acceptance of parliamentary authority was complete independence, which
would lay the province open to the assaults of dangerous enemies (Bailyn, Thomas Hutchinson, p. 207, 209).

The failure of the House to act immediately in reply to his speech may have encouraged
Hutchinson in the belief that many members were { 311 } amazed to learn the true nature of the constitution and that he had won converts to
his position (Hutchinson to John Pownall, 7 Jan. 1773, Docs. of Amer. Rev., 6:45). He was to be disabused of these notions. The story repeated by Hutchinson
that the House in consternation sent messages southward seeking the aid of Daniel
Dulany and John Dickinson (Bailyn, Thomas Hutchinson, p. 208) probably has no foundation. The committee named to draft a reply, made up
of Thomas Cushing, Samuel Adams, John Hancock, Joseph Hawley, and five others, was
ready with its report within fourteen days, hardly time enough for a messenger to
go and return and still permit the committee to get its work done. The committee reported
on 22 January, the report being debated that day and on 26 January, when it was unanimously
accepted (Mass., House Jour., 1772–1773, p. 146, 172, 177). The reply of the House, responding directly to points
made by the Governor, was impressive for its cogency and command of historical and
legal sources. Ironically, the Governor's own history of Massachusetts was quoted
to refute his claims.

Although John Adams was not a member of the House at this time, he was consulted and
left two substantial accounts of the role he played (Diary and Autobiography, 3:304–305; to William Tudor, 8 March 1817, printed in JA, Works, 2:311–313). In both, Adams attributed the committee's turning to him to the influence
of Joseph Hawley. Samuel Adams had prepared a draft for the committee, probably with
the cooperation of Dr. Joseph Warren and perhaps with the assistance of Benjamin Church,
neither of them members of the committee. Dissatisfied with the draft, Hawley, without
whose “countenance, concurrence, and support” no “question upon legal and constitutional
subjects” could pass the House, insisted that John Adams “must be invited and must
be present at every Meeting” of the committee (JA, Works, 2:311; JA, Diary and Autobiography, 3:305).

Despite the “Jealousy and Envy” Adams detected in committee members who resented “this
superiour Attachment of Major Hawley to me” (Diary and Autobiography, 3:305), an effective working relationship developed. Although Adams presented a franker
version of the tale in his Autobiography than in his tactful letter to Tudor, the
two accounts agree on his displeasure with the more “popular” portions of the report
prepared by Samuel Adams. Instead, Adams wished to substitute “legal and constitutional
Reasonings” more in tune with the Governor's own message. “The gentlemen,” he told
Tudor, “very civilly requested me to undertake the task, and I agreed to attempt it.”
He described his method thus: “I drew a line over the most eloquent parts of the oration
they had before them, and introduced those legal and historical authorities which
appear on the record” (Works, 2:313). The resulting document, adopted by the House, appears as No. I, below.

Disappointed in the House reply and perhaps wishing he had not begun a debate, Hutchinson
thought at first to delay his rebuttal until the close of the legislative session
(Hutchinson to Dartmouth, 1 Feb. 1773, Docs. { 312 } of Amer. Rev., 6:80). But he changed his mind. When his counter-reply came at last on 16 February,
it centered attention on the House claim that the colonies as originally foreign territory,
acquired but not a part of the realm of England, were outside Parliamentary jurisdiction.
Hutchinson's answer was that the realm and other dependencies formed “one intire Dominion.”
Massachusetts was a “feudatory of the imperial Crown of England.” No sovereign in
his personal capacity could alienate territory to create new and separate governments.
Hutchinson held that no responsible authority supported the proposition that only
“the ancient territorial Realm” was “subject to the Supreme Authority of England.”
Aside from this central point, the Governor complained with some justice that his
History had been misused: he cited passages demonstrating that General Courts in the past
had specifically acknowledged Parliament's authority (Mass., House Jour., 1772–1773, p. 229–241).

One further reply from the House concluded its side of the debate. On 18 February
a committee consisting of Thomas Cushing, Samuel Adams, John Hancock, and six others
was named to draft a reply to the Governor's second message. Although Hawley was not
on this new committee, Samuel Adams continued to seek the aid of John Adams. The resulting
report (No. III, below) was submitted to the House on 2 March and adopted that same day (Mass., House Jour., 1772–1773, p. 245, 268).

The failure of historians to note John Adams' contributions to this second House reply
must be attributed to Adams himself, for in his recollections of the incident, he
invariably referred to “[a]n Answer” to a “Speech” by Hutchinson. And his reference to Joseph Hawley's part in
the matter would lead scholars to believe that Adams was involved only in the reply
to the first of Hutchinson's messages, since Hawley was not on the committee named
to answer the Governor's second message. But, as Samuel Adams revealed in his note
to John, 22? February (No. II, below), the latter had been asked to “commit” his “Thoughts to writing” even before
Hutchinson's speech of 16 February appeared in print in the Boston Gazette. Charles Francis Adams recognized more than a century ago that the “casual note of
Samuel Adams” showed clearly that John Adams was to participate in drafting the second
reply of the House, “at least in that particular upon which the governor had pounced
with such assurance of victory”—the House contention respecting realm and dominion.
Interpreting Samuel Adams' request as an admission of “the little confidence he had
in his own resources to meet the issue he had been the agent to present,” C. F. Adams
concluded: “This makes it probable that the reply which closed the controversy is
more exclusively the work of John Adams, in manner as well as matter, than the earlier
paper” (JA, Works, 1:126).

There is, however, better evidence yet for attributing to John Adams important portions
of the second reply to Hutchinson. In the letter to William Tudor of 8 March 1817,
John Adams concluded his recollection of his collaboration with the House committee
with these sarcastic remarks: { 313 }

“Mr. Hutchinson really made a meagre figure in that dispute. He had waded beyond his
depth. He had wholly misunderstood the legal doctrine of allegiance.” To demonstrate
the Governor's limitations, Adams continued with this anecdote: “I had quoted largely
from a law authority which no man in Massachusetts, at that time, had ever read. Hutchinson
and all his law counsels were in fault; they could catch no scent. They dared not
deny it, lest the book should be produced to their confusion. It was humorous enough
to see how Hutchinson wriggled to evade it. He found nothing better to say than that
it was 'the artificial reasoning of Lord Coke.' The book was Moore's Reports. The
owner of it, for, alas! master, it was borrowed, was a buyer, but not a reader, of
books. It had been Mr. Gridley's” (JA, Works, 2:313).

After more than four decades, Adams recalled with relish Hutchinson's scornful dismissal
of the “artificial Reasoning of Lord Chief Justice Coke.” But the Governor made this
remark, not in his reply to the first House message of 26 January, but in that to
the second House reply. In his final rebuttal, delivered at the close of the General
Court session on 6 March, Hutchinson employed the phrase with respect to the passage
which argued that “Allegiance is due to the natural Person and not to the Body Politick
of the King” (Mass., House Jour., 1772–1773, p. 297). And, to confirm Adams' recollection, this was the only section
in either House message which drew upon Cases Collect & Report per Sir Fra. Moore. (For passages taken from Moore, see No. III, notes 5, 7, 9, below. Despite the French title, some of the cases were reported in English.)

The use of Moore is not the only contribution which can be attributed to John Adams.
Much of the section introducing the material on realm and allegiance is drawn from
his “A Dissertation on the Canon and the Feudal Law” (see 21 May–Oct. 1765May – 21 October 1765, above). Although it is impossible to tell whether John Adams himself rewrote these
paragraphs from his earlier essays or whether Samuel “borrowed” heavily from the “Dissertation”
for sections which he contributed to the House statement, it is clear that John Adams
must have at least reviewed the passages closely. The House reply contains additional
material from the historian William Robertson, which did not appear in the “Dissertation,”
but which came to John Adams' attention after its publication in 1765, and the pertinence
of which he noted in the margins of his own copy of that work's London edition (see
No. III, note 2, below).

Portions of the House reply in March which can be identified as Adams' work mark an
important development in his political thought. Here the youthful author of the “Dissertation”
begins his transformation into the author of the Novanglus letters. His use of Moore's
report on the post nati case, the philosophical heart of the House reply, anticipates his fuller presentation
of a theory of realm and dominion, colonial rights and parliamentary limitations,
in Novanglus nearly two years later. In Novanglus, the reader finds the same arguments
now polished and refined, but buttressed with historical precedents which Adams apparently
{ 314 } found too late to include in the 1773 House document. (See 23 Jan.–April 1775, Novanglus letter No. IX, in JA, Papers, vol. 2.)

Failure to credit Adams with authorship of the central portions of the House reply
of 2 March is all the more unfortunate as the relation between that message and his
later writings has long been recognized. In 1923 Charles McIlwain wrote admiringly
of the House message as “one of the most remarkable in the whole series of American
'revolutionary' state papers”; and he recognized that that message set forth the “historical
and constitutional basis of article four of the Declaration [of Rights and Grievances]” drafted in the Continental Congress in October 1774 (The American Revolution: A Constitutional Interpretation, N.Y., 1923, p. 122). He was aware of Adams' authorship of that article in the Declaration
as well as of the Novanglus letters, which McIlwain termed, “the most elaborate exposition
extant of the American interpretation of the constitutional problem of the empire”
(same, p. 139).

In 1929, McIlwain expanded on these themes. Writing of the “Massachusetts doctrine,”
that is, “the principle that allegiance to the English King involves no obedience
to the English parliament,” he pointed out that that “doctrine” was clearly expressed
in the House reply of March 1773, was incorporated in Article 4 of the Declaration
of Rights and Grievances, and finally affirmed in Novanglus. The last, McIlwain characterized
as “the most powerful and comprehensive statement ever made of the doctrine of the
Continental Congress” (“The Transfer of the Charter to New England, and its Significance
in American Constitutional History,” MHS, Procs., 63 [Dec. 1929]:61, 62).

In neither discussion did McIlwain realize that the Declaration of 1774 and the Novanglus
letters were related to the March 1773 message by more than the accident of time and
colony of origin. The developing strain in Adams' thought, moving logically from his
1765 “Dissertation,” which acknowledged the modified feudalism under which Puritans
held their land, through Novanglus, was the realization that the legal tradition which
he revered could justify an alternative to the forms of royal government imposed on
his native province and believed by Hutchinson to be the only forms possible. In 1773,
Adams did not submit a blueprint for revolution or insurrection; but he did supply
the House with historically and legally respectable arguments for change.

Hutchinson had lost his gamble that his logic might end political dissension. The
members of the General Court recognized the opportunity the Governor had given them
for publicizing views fundamentally opposed to his. On the morning of 6 March, even
before Hutchinson delivered his final speech to the General Court, the House voted
to have the documents relating to the debate put into a pamphlet for distribution
to each House member and to every town clerk in Massachusetts (Mass., House Jour., 1773–1774, p. 290). The pamphlet appeared as The Speeches of His Excellency Governor Hutchinson, to the General Assembly of the
Massachusetts-Bay. At a Session begun and held on the 6th of January, 1773. { 315 } With the Answers of His Majesty's Council and the House of Representatives Respectively, Boston, 1773 (Evans, No. 12856).

Adams saw that Hutchinson's “Ruin and Destruction must spring out of” the controversy
he had invited and that the Governor's disgrace must come “either from the Ministry
and Parliament on one Hand, or from his Countrymen, on the other” (Diary and Autobiography, 2:77). In the end, Hutchinson could thank both sides for his “Ruin.” The ministry would
doubt his ability to govern the unruly and contentious colonists of Massachusetts.
And, within the province, he had given men like John Adams a chance to take their
thinking one step further toward espousal of independence, although Hutchinson had
expected to terrify them with its “Miseries” in order to bring them to their senses.

Docno: ADMS-06-01-02-0097-0002

Author: Adams, John

Author: Massachusetts House of Representatives

Recipient: Hutchinson, Thomas

Date: 1773-01-26

I. Reply of the House to Hutchinson's First Message

[dateline] Martis, 26 Die Januarii, A.D. 1773, Post-Meridiem

[salute] May it please your Excellency,

Your Excellency's Speech to the General Assembly at the Opening of this Session, has
been read with great Attention in this House.

We fully agree with your Excellency, that our own Happiness as well as his Majesty's
Service, very much depends upon Peace and Order; and we shall at all Times take such
Measures as are consistent with our Constitution and the Rights of the People to promote
and maintain them. That the Government at present is in a very disturbed State is
apparent! But we cannot ascribe it to the People's having adopted unconstitutional
Principles, which seems to be the Cause assigned for it by your Excellency. It appears
to us to have been occasioned rather, by the British House of Commons assuming and
exercising Power inconsistent with the Freedom of the Constitution to give and grant
the Property of the Colonists, and appropriate the same without their Consent.

It is needless for us to enquire what were the Principles that induced the Councils
of the Nation to so new and unprecedented a Measure. But when the Parliament by an
Act of their own expressly declared, that the King, Lords and Commons of the Nation
“have, had, and of Right ought to have full Power and Authority to make Laws and Statutes
of sufficient Force and Validity to bind the Colonies and People of America, Subjects
of the Crown of Great-Britain, in all Cases whatever,”1 and in Consequence hereof another Revenue Act was made, the Minds of the People were
filled with Anxiety, and they were justly alarmed with Apprehensions of the total
Extinction of their Liberties.

The Result of the free Enquiries of many Persons into the Right of the Parliament
to exercise such a Power over the Colonies, seems in your Excellency's Opinion to
be the Cause of what you are pleased to call the present “disturbed State of the Government;”
upon which you “may not any longer consistent with your Duty to the King, and your
Regard to the Interest of the Province, delay communicating your Sentiments.” But
that the Principles adopted in Consequence hereof, are unconstitutional, is a Subject
of Enquiry. We know of no such Disorders arising therefrom as are mentioned by your
Excellency. If Grand Jurors have not on their Oaths found such Offences, as your Excellency
with the Advice of his Majesty's Council have ordered to be prosecuted, it is to be presumed they have followed the Dictates of good Conscience.
They are the constitutional Judges of these Matters, and it is not to be supposed,
that moved from corrupt Principles, they have suffered Offenders to escape a Prosecution,
and thus supported and encouraged them to go on offending. If any Part of the Authority,
shall in an unconstitutional Manner, interpose in any Matter, it will be no wonder
if it be brought into Contempt; to the lessening or confounding of that Subordination
which is necessary to a well regulated State. Your Excellency's Representation that
the Bands of Government are weakened, we humbly conceive to be without good Grounds;
though we must own the heavy Burthens unconstitutionally brought upon the People have
been and still are universally and very justly complained of as a Grievance.

You are pleased to say, that “when our Predecessors first took Possession of this
Plantation or Colony, under a Grant and Charter from the Crown of England, it was
their Sense and it was the Sense of the Kingdom, that they were to remain subject
to the Supreme Authority of Parliament;” whereby we understand your Excellency to
mean in the Sense of the Declaratory Act of Parliament aforementioned, in all Cases
whatever. And indeed it is difficult, if possible, to draw a Line of Distinction between
the universal Authority of Parliament over the Colonies and no Authority at all. It
is therefore necessary for us to enquire how it appears, for your Excellency has not
shown it to us, that when or at the Time that our Predecessors took Possession of
this Plantation or Colony, under a Grant and Charter from the Crown of England, it
was their Sense, and the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament. In making
this Enquiry, we shall, according to your Excellency's Recommendation, treat the Subject
with Calmness and Candor, and also with a due Regard to Truth.

Previous to a direct Consideration of the Charter granted to this Province or Colony,
and the better to elucidate the true Sense and Meaning of it, we would take a View
of the State of the English North American Continent at the Time when and after Possession
was first taken of any Part of it, by the Europeans. It was then possessed by Heathen
and Barbarous People, who had nevertheless all that Right to the Soil and Sovereignty
in and over the Lands they possessed, which God had originally given to Man. Whether
their being Heathen, inferred any Right or Authority to Christian Princes, a Right
which had long been assumed by the Pope, to dispose of their Lands to others, we will
leave to your Excellency or any one of Understanding and impartial Judgment to consider.
It is certain they had in no other Sense forfeited them to any Power in Europe. Should
the Doctrine be admitted that the Discovery of Lands owned and possessed by Pagan
People, gives to any Christian Prince a Right and Title to the Dominion and Property,
still it is invested in the Crown alone. It was an Acquisition of Foreign Territory,
not annexed to the Realm of England, and therefore at the absolute Disposal of the
Crown. For we take it to be a settled Point, that the King has a constitutional Prerogative
to dispose of and alienate any Part of his Territories not annexed to the Realm. In
the Exercise of this Prerogative, Queen Elizabeth granted the first American Charter;
and claiming a Right by Virtue of Discovery, then supposed to be valid, to the Lands
which are now possessed by the Colony of Virginia, she conveyed to Sir Walter Rawleigh,
the Property, Dominion and Sovereignty thereof, to be held of the Crown by Homage,
and a certain Render, without any Reservation to herself of any Share in the Legislative
and Executive Authority. After the Attainder of Sir Walter, King James the First created
two Virginia Companies, to be governed each by Laws transmitted to them by his Majesty
and not by the Parliament, with Power to establish and cause to be made a Coin to
pass current among them; and vested with all Liberties, Franchises and Immunities
within any of his other Dominions, to all Intents and Purposes, as if they had been
abiding, and born within the Realm. A Declaration similar to this is contained in the first Charter of this Colony, and
in those of other American Colonies, which shows that the Colonies were not intended
or considered to be within the Realm of England, though within the Allegiance of the
English Crown. After this, another Charter was granted by the same King James, to
the Treasurer and Company of Virginia, vesting them with full Power and Authority,
to make, ordain and establish all Manner of Orders, Laws, Directions, Instructions,
{ 318 } Forms and Ceremonies of Government, and Magistracy, fit and necessary, and the same
to abrogate, &c. without any Reservation for securing their Subjection to the Parliament
and future Laws of England. A third Charter was afterwards granted by the same King
to the Treasurer and Company of Virginia, vesting them with Power and Authority to
make Laws, with an Addition of this Clause, “so always that the same be not contrary
to the Laws and Statutes of this our Realm of England.” The same Clause was afterwards
copied into the Charter of this and other Colonies, with certain Variations, such
as that these Laws should be “consonant to Reason,” “not repugnant to the Laws of
England,” “as nearly as conveniently may be to the Laws, Statutes and Rights of England,”
&c. These Modes of Expression convey the same Meaning, and serve to show an Intention
that the Laws of the Colonies should be as much as possible, conformant in the Spirit
of them to the Principles and fundamental Laws of the English Constitution, its Rights
and Statutes then in Being, and by no Means to bind the Colonies to a Subjection to
the Supreme Authority of the English Parliament. And that this is the true Intention,
we think it further evident from this Consideration, that no Acts of any Colony Legislative,
are ever brought into Parliament for Inspection there, though the Laws made in some
of them, like the Acts of the British Parliament are laid before the King for his
Assent or Disallowance.

We have brought the first American Charters into View, and the State of the Country
when they were granted, to show that the Right of disposing of the Lands was in the
Opinion of those Times vested solely in the Crown—that the several Charters conveyed
to the Grantees, who should settle upon the Territories therein granted, all the Powers
necessary to constitute them free and distinct States—and that the fundamental Laws
of the English Constitution should be the certain and established Rule of Legislation,
to which the Laws to be made in the several Colonies were to be as nearly as conveniently
might be, comformable or similar, which was the true Intent and Import of the Words,
“not repugnant to the Laws of England,” “consonant to Reason,” and other variant Expressions
in the different Charters. And we would add, that the King in some of the Charters
reserves the Right to judge of the Consonance and Similarity of their Laws with the
English Constitution to himself, and not to the Parliament; and in Consequence thereof
to affirm, or within a limited Time, disallow them.

These Charters, as well as that afterwards granted to Lord Balti• { 319 } more, and other Charters, are repugnant to the Idea of Parliamentary Authority: And
to suppose a Parliamentary Authority over the Colonies under such Charters would necessarily
induce that Solecism in Politics Imperium in Imperio. And the King's repeatedly exercising the Prerogative of disposing of the American
Territory by such Charters, together with the Silence of the Nation, thereupon, is
an Evidence that it was an acknowledged Prerogative.

But further to show the Sense of the English Crown and Nation that the American Colonists
and our Predecessors in particular, when they first took Possession of this Country
by a Grant and Charter, from the Crown did not remain subject to the Supreme Authority
of Parliament, we beg leave to observe; that when a Bill was offered by the two Houses
of Parliament to King Charles the First, granting to the Subjects of England the free
Liberty of Fishing on the Coast of America, he refused his Royal Assent, declaring
as a Reason, that “the Colonies were without the Realm and Jurisdiction of Parliament.”

In like Manner, his Predecessor James the First, had before declared upon a similar
Occasion, that “America was not annexed to the Realm, and it was not fitting that Parliament should make Laws for those Countries.”2 This Reason was, not secretly, but openly declared in Parliament. If then the Colonies
were not annexed to the Realm, at the Time when their Charters were granted, they
never could be afterwards, without their own special Consent, which has never since
been had, or even asked. If they are not now annexed to the Realm, they are not a
Part of the Kingdom, and consequently not subject to the Legislative Authority of
the Kingdom. For no Country, by the Common Law was subject to the Laws or to the Parliament,
but the Realm of England.3

We would, if your Excellency pleases, subjoin an Instance of Conduct in King Charles
the Second, singular indeed, but important to our Purpose; who, in 1679, framed an
Act for a permanent Revenue for the Support of Virginia, and sent it there by Lord
Colpepper [Culpeper], the Governor of that Colony; which was afterwards passed into a Law, and “Enacted by the King's most excellent Majesty, by and with the Consent of the General
Assembly of Virginia.”4 If the King had judged that Colony to be a Part of the Realm, he would not, nor could
he consistently with Magna Charta, have placed himself at the Head of, and joined
with any Legislative Body in making a Law to Tax the People there, other than the
Lords and Commons of England.

Having taken a View of the several Charters of the first Colony in America, if we
look into the old Charter of this Colony, we shall find { 320 } it to be grounded on the same Principle: That the Right of disposing the Territory
granted therein was vested in the Crown, as being that Christian Sovereign who first
discovered it, when in the Possession of Heathen; and that it was considered as being
not within the Realm, but only within the Fee and Seignory of the King. As therefore
it was without the Realm of England, must not the King, if he had designed that the
Parliament should have had any Authority over it, have made a special Reservation
for that Purpose, which was not done.

Your Excellency says, it appears from the Charter itself, to have been the Sense of
our Predecessors who first took Possession of this Plantation or Colony, that they
were to remain subject to the Authority of Parliament. You have not been pleased to
point out to us how this appears from the Charter, unless it be in the Observation
you make on the above-mentioned Clause, viz. “That a favourable Construction has been
put upon this Clause, when it has been allowed to intend such Laws of England only
as are expressly made to respect us,” which you say “is by Charter a Reserve of Power
and Authority to Parliament to bind us by such Laws at least as are made expressly
to refer to us, and consequently is a Limitation of the Power given to the General
Court.” But we would still recur to the Charter itself, and ask your Excellency, How
this appears from thence to have been the Sense of our Predecessors? Is any Reservation
of Power and Authority to Parliament thus to bind us, expressed or implied in the
Charter? It is evident, that King Charles the first, the very Prince who granted it,
as well as his Predecessor, had no such Idea of the supreme Authority of Parliament
over the Colony, from their Declarations before recited. Your Excellency will then
allow us further to ask, by what Authority in Reason or Equity the Parliament can
enforce a Construction so unfavourable to us. Quod ab anitio injustum est, nullum potest habere juris effectum, said Grotius. Which with Submission to your Excellency may be rendered thus, Whatever is originally in its Nature wrong, can never be satisfied or made right by
Reputation and Use.

In solemn Agreements subsequent Restrictions ought never to be allowed. The celebrated
Author whom your Excellency has quoted, tells us that “neither the one or the other
of the interested or contracting Powers hath a Right to interpret at Pleasure.”5 This we mention to show, even upon a Supposition that the Parliament had been a Party
to the Contract, the Invalidity of any of its subsequent Acts, to explain any Clause
in the Charter; more especially to restrict or make void any Clause granted therein
to the General Court. An Agreement ought to be interpreted “in such a Manner as that
it may { 321 } have its Effect:” But if your Excellency's Interpretation of this Clause is just, “that it is a Reserve
of Power and Authority to Parliament to bind us by such Laws as are made expressly
to refer to us,” it is not only “a Limitation of the Power given to the General Court”
to Legislate, but it may whenever the Parliament shall think fit, render it of no Effect; for it puts it in the Power of Parliament to bind us by as many Laws as they please,
and even to restrain us from making any Laws at all. If your Excellency's Assertions
in this and the next succeeding Part of your Speech were well grounded, the Conclusion
would be undeniable, that the Charter even in this Clause, “does not confer or reserve
any Liberties” worth enjoying “but what would have been enjoyed without it;” saving
that within any of his Majesty's Dominions we are to be considered barely as not Aliens. You are pleased to say, it cannot “be contended that by the Liberties of free and
natural Subjects” (which are expressly granted in the Charter to all Intents, Purposes
and Constructions whatever) “is to be understood an Exemption from Acts of Parliament
because not represented there; seeing it is provided by the same Charter that such
Acts shall be in Force.” If, says an eminent Lawyer, “the King grants to the Town
of D. the same Liberties which London has, this shall be intended the like Liberties.”
A Grant of the Liberties of free and natural Subjects is equivalent to a Grant of
the same Liberties. And the King in the first Charter to this Colony expressly grants
that it “shall be construed, reputed and adjudged in all Cases most favourably on
the Behalf and for the Benefit and Behoof of the said Governor and Company and their
Successors—any Matter, Cause or Thing whatsoever to the contrary notwithstanding.”
It is one of the Liberties of free and natural Subjects, born and abiding within the
Realm, to be governed as your Excellency observes, “by Laws made by Persons in whose
Elections they from Time to Time have a Voice.” This is an essential Right. For nothing
is more evident, than that any People who are subject to the unlimited Power of another,
must be in a State of abject Slavery. It was easily and plainly foreseen that the
Right of Representation in the English Parliament could not be exercised by the People
of this Colony. It would be impracticable, if consistent with the English Constitution.
And for this Reason, that this Colony might have and enjoy all the Liberties and Immunities
of free and natural Subjects within the Realm as stipulated in the Charter it was
necessary, and a Legislative was accordingly constituted within the Colony; one Branch
of which consists of Representatives chosen by the People, to make all Laws, Statutes,
Ordinances, &c. for the well-ordering and { 322 } governing the same, not repugnant to the Laws of England, or, as nearly as conveniently
might be, agreeable to the fundamental Laws of the English Constitution. We are therefore
still at a Loss to conceive where your Excellency finds it “provided in the same Charter, that such Acts,” viz. Acts of Parliament made expressly to refer
to us, “shall be in Force” in this Province. There is nothing to this Purpose expressed
in the Charter, or in our Opinion even implied in it. And surely it would be very
absurd, that a Charter, which is evidently formed upon a Supposition and Intention,
that a Colony is and should be considered as not within the Realm; and declared by
the very Prince who granted it, to be not within the Jurisdiction of Parliament, should
yet provide, that the Laws which the same Parliament should make expressly to refer to that Colony,
should be in Force therein. Your Excellency is pleased to ask, “Does it follow that
the Government by their (our Ancestors) Removal from one Part of the Dominions to
another, loses its Authority over that Part to which they remove; And that they are
freed from the Subjection they were under before?” We answer, if that Part of the
King's Dominions to which they removed was not then a Part of the Realm, and was never
annexed to it, the Parliament lost no Authority over it, having never had such Authority;
and the Emigrants were consequently freed from the Subjection they were under before
their Removal: The Power and Authority of Parliament being constitutionally confined
within the Limits of the Realm and the Nation collectively, of which alone it is the
representing and legislative Assembly. Your Excellency further asks, “Will it not
rather be said, that by this their voluntary Removal, they have relinquished for a
Time at least, one of the Rights of an English Subject, which they might if they pleased
have continued to enjoy, and may again enjoy, whenever they return to the Place where
it can be exercised?” To which we answer; They never did relinquish the Right to be
governed by Laws made by Persons in whose Election they had a Voice. The King stipulated
with them that they should have and enjoy all the Liberties of free and natural Subjects
born within the Realm, to all Intents, Purposes and Constructions whatsoever; that
is, that they should be as free as those who were to abide within the Realm: Consequently
he stipulated with them that they should enjoy and exercise this most essential Right,
which discriminates Freemen from Vassals, uninterruptedly in its full Sense and Meaning;
and they did and ought still to exercise it, without the Necessity of returning, for
the Sake of exercising it, to the Nation or State of England.

We cannot help observing, that your Excellency's Manner of Reasoning on this Point,
seems to us to render the most valuable Clauses in our Charter unintelligible: As
if Persons going from the Realm of England to inhabit in America should hold and exercise
there a certain Right of English Subjects; but in order to exercise it in such Manner
as to be of any Benefit to them, they must not inhabit there, but return to the Place where alone it can be exercised. By such Construction,
the Words of the Charter can have no Sense or Meaning. We forbear remarking upon the
Absurdity of a Grant to Persons born within the Realm, of the same Liberties which
would have belonged to them if they had been born within the Realm.

Your Excellency is disposed to compare this Government to the Variety of Corporations,
formed within the Kingdom, with Power to make and execute By-Laws, &c. And because
they remain subject to the Supreme Authority of Parliament, to infer that this Colony
is also subject to the same Authority. This Reasoning appears to us not just. The
Members of those Corporations are Resi[d]ant within the Kingdom; and Residence subjects them to the Authority of Parliament,
in which they are also represented: Whereas the People of this Colony are not Resident
within the Realm. The Charter was granted with the express Purpose to induce them
to reside without the Realm; consequently they are not represented in Parliament there.
But we would ask your Excellency; Are any of the Corporations formed within the Kingdom,
vested with the Power of erecting other subordinate Corporations? Of enacting and
determining what Crimes shall be Capital? And constituting Courts of Common Law with
all their Officers, for the hearing, trying and punishing capital Offenders with Death?
These and many other Powers vested in this Government, plainly show that it is to
be considered as a Corporation in no other Light, than as every State is a Corporation.
Besides, Appeals from the Courts of Law here, are not brought before the House of
Lords; which shows that the Peers of the Realm are not the Peers of America: But all
such Appeals are brought before the King in Council, which is a further Evidence that
we are not within the Realm.

We conceive enough has been said to convince your Excellency, that “when our Predecessors
first took Possession of this Plantation or Colony by a Grant and Charter from the
Crown of England, it was not and never had been the Sense of the Kingdom, that they were to remain subject to
the Supreme Authority of Parliament. We will now with your Excellency's Leave, enquire
what was the Sense of our Ancestors of this very important Matter.

And as your Excellency has been pleased to tell us, you have not discovered that the
Supreme Authority of Parliament has been called in Question even by private and particular
Persons, until within seven or eight Years past; except about the Time of the Anarchy
and Confusion in England which preceeded the Restoration of King Charles the Second;
we beg leave to remind your Excellency of some Parts of your own History of Massachusetts-Bay.6 Therein we are informed of the Sentiments of “Persons of Influence” after the Restoration,
from which the Historian tells us, some Parts of their Conduct, that is of the General
Assembly, “may be pretty well accounted for.” By the History it appears to have been
the Opinion of those Persons of Influence, “that the Subjects of any Prince or State
had a natural Right to Remove to any other State or to another Quarter of the World
unless the State was weakened or exposed by such Remove; and even in that Case, if
they were deprived of the Right of all Mankind, Liberty of Conscience, it would justify
a Separation, and upon their Removal their Subjection determined and ceased.” That “the Country to which they had removed, was claimed and possessed by independent
Princes, whose Right to the Lordship and Sovereignty thereof had been acknowledged
by the Kings of England,” an Instance of which is quoted in the Margin;7 “That they themselves had actually purchased for valuable Consideration, not only
the Soil but the Dominion, the Lordship and Sovereignty of those Princes;” without
which Purchase, “in the Sight of God and Men, they had no Right or Title to what they
possessed.” That they had received a Charter of Incorporation from the King, from
whence arose a new Kind of Subjection, namely, “a voluntary, civil Subjection;” and
by this Compact “they were to be governed by Laws made by themselves.” Thus it appears to have been the Sentiments of private Persons, though Persons, by whose Sentiments the public Conduct was influenced, that
their Removal was a justifiable Separation from the Mother State, upon which their
Subjection to that State determined and ceased. The Supreme Authority of Parliament,
if it had then ever been asserted, must surely have been called in Question, by Men
who had advanced such Principles as these.

The first Act of Parliament made expressly to refer to the Colonies, was after the
Restoration. In the Reign of King Charles the Second, several such Acts passed. And
the same History informs us there was a Difficulty in conforming to them; and the
Reason of this Difficulty is explained in a Letter of the General Assembly to their
Agent, quoted in the following Words, “They apprehended them to be an Invasion { 325 } of the Rights, Liberties and Properties of the Subjects of his Majesty in the Colony,
they not being represented in Parliament, and according to the usual Sayings of the Learned in the Law, the Laws of England
were bounded within the four Seas, and did not reach America: However as his Majesty had signified his Pleasure that those Acts should be observed
in the Massachusetts, they had made Provision by a Law of the Colony, that they should
be strictly attended.” Which Provision by a Law of their own would have been superfluous,
if they had admitted the supreme Authority of Parliament. In short, by the same History
it appears that those Acts of Parliament as such were disregarded; and the following
Reason is given for it; “It seems to have been a general Opinion that Acts of Parliament had no other Force, than what they derived from Acts
made by the General Court to establish and confirm them.”8

But still further to show the Sense of our Ancestors respecting this Matter, we beg
Leave to recite some Parts of a Narrative presented to the Lords of Privy Council
by Edward Randolph, in the Year 1676, which we find in your Excellency's Collection
of Papers lately published.9 Therein it is declared to be the Sense of the Colony, “that no Law is in Force or
Esteem there, but such as are made by the General Court; and therefore it is accounted
a Breach of their Privileges, and a Betraying of the Liberties of their Commonwealth,
to urge the Observation of the Laws of England.” And further, “That no Oath shall
be urged or required to be taken by any Person, but such Oath as the General Court
hath considered, allowed and required.” And further, “there is no Notice taken of
the Act of Navigation, Plantation or any other Laws made in England for the Regulation
of Trade.” “That the Government would make the World believe they are a free State
and do act in all Matters accordingly.” Again, “These Magistrates ever reserve to
themselves a Power to alter, evade and disannul any Law or Command, not agreeing with
their Humour or the absolute Authority of their Government, acknowledging no Superior.”
And further, “He (the Governor) freely declared to me, that the Laws made by your
Majesty and your Parliament, obligeth them in nothing, but what consists with the
Interests of that Colony, that the Legislative Power and Authority is and abides in
them solely.” And in the same Mr. Randolph's Letter to the Bishop of London, July 14, 1682, he
says, “This Independency in Government, claimed and daily practised.” And your Excellency being then sensible that this was the Sense of our Ancestors, in a Marginal Note in the same
Collection of Papers observes, that “this,” viz. the Provision made for observing
the { 326 } Acts of Trade, “is very extraordinary, for this Provision was an Act of the Colony
declaring the Acts of Trade shall be in Force there.” Although Mr. Randolph was very
unfriendly to the Colony, yet as his Declarations are concurrent with those recited
from your Excellency's History, we think they may be admitted for the Purpose for
which they are now brought.

Thus we see, from your Excellency's History and Publications, the Sense our Ancestors
had of the Jurisdiction of Parliament under the first Charter. Very different from
that which your Excellency in your Speech apprehends it to have been.

It appears by Mr. Neal's History of New-England,10 that the Agents who had been employed by the Colony to transact its Affairs in England
at the Time when the present Charter was granted, among other Reasons gave the following
for their Acceptance of it, viz. “The General Court has with the King's Approbation
as much Power in New-England, as the King and Parliament have in England; they have
all English Privileges, and can be touched by no Law, and by no Tax but of their own making.” This is the earliest Testimony that can
be given of the Sense our Predecessors had of the Supreme Authority of Parliament
under the present Charter. And it plainly shows, that they, who having been freely
conversant with those who framed the Charter, must have well understood the Design
and Meaning of it, supposed that the Terms in our Charter “full Power and Authority,”
intended and were considered as a sole and exclusive Power, and that there was no “Reserve in the Charter to the Authority
of Parliament, to bind the Colony” by any Acts whatever.

Soon after the Arrival of the Charter, viz. in 1692, your Excellency's History informs
us,11 “the first Act” of this Legislative was a Sort of Magna Charta, asserting and setting
forth their general Privileges, and this Clause was among the rest, “No Aid, Tax,
Tallage, Assessment, Custom, Loan, Benevolence, or Imposition whatever, shall be laid,
assess'd, impos'd or levied on any of their Majesty's Subjects, or their Estates,
on any Pretence whatever, but by the Act and Consent of the Governor, Council and
Representatives of the People assembled in General Court.” And though this Act was
disallowed, it serves to show the Sense which the General Assembly contemporary with
the granting the Charter had of their sole and exclusive Right to Legislate for the
Colony. The History says, “the other Parts of the Act were copied from Magna Charta;”
by which we may conclude that the Assembly then construed the Words “not repugnant
to the Laws,” to mean, conformable to the fundamental Principles of the English { 327 } Constitution. And it is observable that the Lords of Privy Council, so lately as in
the Reign of Queen Anne, when several Laws enacted by the General Assembly, were laid
before her Majesty for her Allowance, interpreted the Words in this Charter, “not
repugnant to the Laws of England,” by the Words “as nearly as conveniently may be
agreeable to the Laws and Statutes of England.” And her Majesty was pleased to disallow
those Acts, not because they were repugnant to any Law or Statute of England, made
expressly to refer to the Colony; but because divers Persons, by Virtue thereof, were
punished without being tried by their Peers in the ordinary “Courts of Law,” and “by
the ordinary Rules and known Methods of Justice;” contrary to the express Terms of
Magna Charta, which was a Statute in Force at the Time of granting the Charter, and
declaratory of the Rights and Liberties of the Subjects within the Realm.

You are pleased to say, that “our Provincial or Local Laws have in numerous Instances
had Relation to Acts of Parliament made to respect the Plantations and this Colony
in particular.” The Authority of the Legislature, says the same Author who is quoted
by your Excellency,12 “does not extend so far as the Fundamentals of the Constitution.” “They ought to
consider the Fundamental Laws as sacred, if the Nation has not in very express Terms,
given them the Power to change them. For the Constitution of the State ought to be
fixed: And since that was first established by the Nation, which afterwards trusted
certain Persons with the Legislative Power, the fundamental Laws are excepted from
their Commission.” Now the Fundamentals of the Constitution of this Province are stipulated
in the Charter; the Reasoning therefore in this Case holds equally good. Much less
then ought any Acts or Doings of the General Assembly, however numerous, to neither
of which your Excellency has pointed us, which barely relate to Acts of Parliament
made to respect the Plantations in general, or this Colony in particular, to be taken
as an Acknowledgment of this People, or even of the Assembly, which inadvertently
passed those Acts, that we are subject to the Supreme Authority of Parliament. And
with still less Reason are the Decisions in the Executive Courts to determine this
Point. If they have adopted that “as Part of the Rule of Law,” which in Fact is not,
it must be imputed to Inattention or Error in Judgment, and cannot justly be urged
as an Alteration or Restriction of the Legislative Authority of the Province.

Before we leave this Part of your Excellency's Speech, we would observe, that the
great Design of our Ancestors, in leaving the Kingdom of England, was to be freed
from a Subjection to its spiritual { 328 } Laws and Courts, and to worship God according to the Dictates of their Consciences.
Your Excellency in your History observes,13 that their Design was “to obtain for themselves and their Posterity the Liberty of
worshipping God in such Manner as appeared to them most agreeable to the sacred Scriptures.”
And the General Court themselves declared in 1651, that “seeing just Cause to fear
the Persecution of the then Bishop[s], and High Commission for nor [not] conforming to the Ceremonies [then pressed upon the Consciences] of those under their Power, they thought it their safest Course, to get to this Outside
of the World, out of their View and beyond their Reach.14 But if it had been their Sense, that they were still to be subject to the supreme
Authority of Parliament, they must have known that their Design might and probably
would be frustrated; that the Parliament, especially considering the Temper of those
Times, might make what ecclesiastical Laws they pleased, expressly to refer to them,
and place them in the same Circumstances with Respect to religious Matters, to be
relieved from which was the Design of their Removal. And we would add, that if your
Excellency's Construction of the Clause in our present Charter is just, another Clause
therein, which provides for Liberty of Conscience for all Christians except Papists,
may be rendered void by an Act of Parliament made to refer to us, requiring a Conformity
to the Rites and Mode of Worship in the Church of England or any other.

Thus we have endeavoured to shew the Sense of the People of this Colony under both
Charters; and if there have been in any late Instances a Submission to Acts of Parliament,
it has been in our Opinion, rather from Inconsideration or a Reluctance at the Idea
of contending with the Parent State, than from a Conviction or Acknowledgment of the
Supreme Legislative Authority of Parliament.

Your Excellency tells us, “you know of no Line that can be drawn between the Supreme
Authority of Parliament and the total Independence of the Colonies.” If there be no
such Line, the Consequence is, either that the Colonies are the Vassals of the Parliament,
or, that they are totally independent. As it cannot be supposed to have been the Intention
of the Parties in the Compact, that we should be reduced to a State of Vassallage,
the Conclusion is, that it was their Sense, that we were thus Independent. “It is
impossible, your Excellency says, that there should be “two independent Legislatures
in one and the same State.” May we not then further conclude, that it was their Sense
that the Colonies were by their Charters made distinct States from the Mother Country?
Your Excellency adds, “For although { 329 } there may be but one Head, the King, yet the two Legislative Bodies will make two
Governments as distinct as the Kingdoms of England and Scotland before the Union.”
Very true, may it please your Excellency; and if they interfere not with each other,
what hinders but that being united in one Head and common Sovereign, they may live
happily in that Connection and mutually support and protect each other? Notwithstanding
all the Terrors which your Excellency has pictured to us as the Affects of a total
Independence, there is more Reason to dread the Consequences, of absolute uncontrouled
Supreme Power, whether of a Nation or a Monarch; than those of a total Independence.
It would be a Misfortune “to know by Experience, the Difference between the Liberties
of an English Colonist and those of a Spanish, French and Dutch: And since the British
Parliament has passed an Act which is executed even with Rigour, though not voluntarily
submitted to, for raising a Revenue and appropriating the same without the Consent
of the People who pay it, and have claimed a Power of making such Laws as they please
to order and govern us, your Excellency will excuse us in asking, whether you do not
think we already experience too much of such a Difference, and have not Reason to
fear we shall soon be reduced to a worse Situation than that of the Colonies of France,
Spain or Holland.

If your Excellency expects to have the Line of Distinction between the Supreme Authority
of Parliament, and the total Independence of the Colonies drawn by us, we would say
it would be an arduous Undertaking; and of very great Importance to all the other
Colonies: And therefore, could we conceive of such a Line, we should be unwilling
to propose it, without their Consent in Congress.

To conclude, These are great and profound Questions. It is the Grief of this House,
that by the ill Policy of a late injudicious Administration, America has been driven
into the Contemplation of them. And we cannot, but express our Concern, that your
Excellency by your Speech has reduced us to the unhappy Alternative, either of appearing
by our Silence to acquiesce in your Excellency's Sentiments, or of thus freely discussing
this Point.

After all that we have said, we would be far from being understood to have in the
least abated that just Sense of Allegiance which we owe to the King of Great-Britain,
our rightful Sovereign: And should the People of this Province be left to the free
and full Exercise of all the Liberties and Immunities granted to them by Charter,
there would be no Danger of an Independance on the Crown. Our Charters reserve great
Power to the Crown in its Representative, fully sufficient { 330 } to balance, analagous to the English Constitution, all the Liberties and Privileges
granted to the People. All this your Excellency knows full well—And whoever considers
the Power and Influence, in all their Branches, reserved by our Charter to the Crown,
will be far from thinking that the Commons of this Province are too Independent.

2. JA's source for these passages on the Stuarts' assertions that the American colonies
were “without the realm” was apparently the 4th edition of Thomas Pownall, The Administration of the Colonies . . . , London, 1768, p. 48–49. It would seem, however, that JA took certain liberties with his source. As described by Pownall, the incidents occurred
thus: “So that when the House of Commons, in those reiterated attempts which they
made by passing a bill to get a law enacted for establishing a free right of fishery
on the coasts of Virginia, New-England, and Newfoundland, put in the claim of the
state to this property, and of the parliament to jurisdiction over it; they were told
in the House by the servants of the crown, 'That it was not fit to make laws here
for those countries which are not yet annexed to the crown. That this bill was not
proper for this house, as it concerneth America.'” Pownall's footnotes state clearly
that this view of Parliament's authority referred only to the disputes between Parliament
and James I in 1621.

Pownall mentions no dissent by Charles I to a bill passed by both Houses on the fisheries
question. Indeed, none was ever made, for all bills to end the fishing monopoly in
the New England charters failed to pass in Parliament during the reigns of both James
I and Charles I (Charles B. Judah, The North American Fisheries and British Policy to 1713, Urbana, 1933 [Ill. Studies in the Social Sciences, 18, nos. 3–4], p. 50–60;
George L. Beer, The Origins of the British Colonial System, 1578–1660, N. Y., 1908, p. 272–275).

4. “An Act for raising a publique revenue for the better support of the government of
this his majesties colony,” June 1680, Henings Statutes, 2:466–469.

5. In his address of 6 Jan., Hutchinson had quoted this passage from Emmerich de Vattel,
The Law of Nations, or, Principles of the Law of Nature, applied to the Conduct and
Affairs of Nations and Sovereigns: “When a nation takes possession of a distant country, and settles a colony there,
that country, though separated from the principal establishment, or mother country,
naturally becomes a part of the state, equally with its ancient possessions” (bk.
1, ch. 18, sect. 210). The statement offered by the House in rebuttal appears in the
same work, bk. 2, ch. 17, sect. 265.

9. Hutchinson's A Collection of Original Papers Relative to the History of the Colony of Massachusets-Bay, Boston, 1769. This paragraph includes quotations which appear at p. 482, 483, 496,
499, 506, 539, 521.

10. Daniel Neal, The History of NewEngland containing an Impartial Account of the Civil and Ecclesiastical
Affairs ... to the Year of our Lord, 1700, 2 vols., London, 1720. Passages quoted in this paragraph appear in 2:479. Only the
first volume of JA's set is listed in Catalogue of JA's Library.

II. Samuel Adams to John Adams

[dateline] Monday Evg [22? February 1773]

[salute] My dear Sir

If you have had Leisure to commit your Thoughts to writing agreable to my Request
I shall be oblig'd if you will send them by the Bearer. The Govr says the House have
incautiously applied a Rule of the Common Law (see the 4th Coll. of his Speech).1 The Assertion is mine, upon your Authority as I thought. If it be vindicable, pray give me your Aid in that as briefly
as you please. I am sorry to trouble you at a time when I know you must be much engagd
but to tell you a Secret, if there be a Lawyer in the house in Major Hawleys Absense,
there is no one whom I incline to confide in.

[salute] Your friend

[signed] S. Adams

RC (Adams Papers); addressed: “To John Adams Esqr”; endorsed by JA: “Sam. Adams in dispute with Hutchinson.” Docketed in a later hand: “See Mass. State
Papers p. 374. Feby. 1773 and p. 387.” The “State Papers” referred to is Mass., Speeches of the Governors, &c., 1765–1775. At p. 374 of this work appears that section of Hutchinson's message of 16 Feb. concerning
the definition of “realm”; the passages in the House reply of 2 March dealing with
allegiance and realm begin at p. 387.

1. Hutchinson's message of 16 Feb. was printed in the Boston Gazette, 22 Feb. The speech took up the three columns of p. 2, continuing over to p. 3. Thus
the “4th Coll.” was the 1st column of p. 3, where this remark appeared: “If you mean
that no Countries but the ancient territorial Realm can constitutionally be subject
to the Supreme authority of England, which you have very incautiously said is a Rule
of the Common Law of England, this is a doctrine which you will never be able to support.”

Docno: ADMS-06-01-02-0097-0004

Author: Adams, John

Author: Massachusetts House of Representatives

Recipient: Hutchinson, Thomas

Date: 1773-03-02

III. Reply of the House to Hutchinson's Second Message

[dateline] Martis, 2 Die Martii, A.D. 1773 Post-Meridiem

[salute] May it please your Excellency,

In your Speech at the Opening of the present Session, your Excellency express'd your
Displeasure at some late Proceedings of the Town of Boston, and other principal Towns in the Province. And in another Speech to both Houses
we have your repeated Ex• { 332 } ceptions at the same Proceedings as being “unwarrantable,” and of a dangerous Nature
and Tendency; “against which you thought yourself bound to call upon us to join with
you in bearing a proper Testimony.” This House have not discovered any Principles
advanced by the Town of Boston, that are unwarrantable by the Constitution; nor does it appear to us that they have
“invited every other Town and District in the Province to adopt their Principles.”
We are fully convinced that it is our Duty to bear our Testimony against “Innovations
of a dangerous Nature and Tendency:” but it is clearly our Opinion, that it is the
indisputable Right of all or any of his Majesty's Subjects in this Province, regularly
and orderly to meet together to state the Grievances they labor under; and to propose
and unite in such constitutional Measures as they shall judge necessary or proper
to obtain Redress. This Right has been frequently exercised by his Majesty's Subjects
within the Realm; and we do not recollect an Instance, since the happy Revolution,
when the two Houses of Parliament have been called upon to discountenance or bear
their Testimony against it, in a Speech from the Throne.

Your Excellency is pleased to take Notice of some Things which we “alledge” in our
Answer to your first Speech: And the Observation you make, we must confess, is as
natural and as undeniably true, as any one that could have been made; that “if our
Foundation shall fail us in every Part of it, the Fabrick we have rais'd upon it, must certainly fall.” You think, this Foundation
will fail us; but we wish your Excellency had condescended to a Consideration of what
we have “adduced in Support of our Principles.” We might then perhaps have had some
Things offered for our Conviction, more than bare Affirmations; which, we must beg
to be excused if we say, are far from being sufficient, though they came with your
Excellency's Authority, for which however we have a due Regard.

Your Excellency says that “as English Subjects and agreeable to the Doctrine of the
Feudal Tenure all our Lands are held mediately or immediately of the Crown.” We trust
your Excellency does not mean to introduce the Feudal System in it's Perfection; which
to use the Words of one of our greatest Historians,1 was “a State of perpetual War, Anarchy and Confusion; calculated solely for Defence
against the Assaults of any foreign Power, but in it's Provision for the interior
Order and Tranquility of Society extremely defective.” “A Constitution so contradictory
to all the Principles that govern Mankind, could never be brought about but by foreign
Conquest or native Usurpation:”2 And a very celebrated Writer calls it “that most iniquitous { 333 } and absurd Form of Government by which human Nature was so shamefully degraded.” This
System of Iniquity by a strange Kind of Fatility, “though originally form'd for an
Encampment and for Military Purposes only, spread over a great Part of Europe:” and
to serve the Purposes of Oppression and Tyranny “was adopted by Princes and wrought
into their Civil Constitutions;” and aided by the Canon Law, calculated by the Roman
Pontiff, to exalt himself above all that is called God, it prevailed to the almost
utter Extinction of Knowledge, Virtue, Religion and Liberty from that Part of the
Earth. But from the Time of the Reformation, in Proportion as Knowledge, which then
darted its Rays upon the benighted World, increas'd and spread among the People, they
grew impatient under this heavy Yoke: And the most virtuous and sensible among them,
to whose Stedfastness we in this distant Age and Climate are greatly indebted, were
determined to get rid of it: And tho' they have in a great Measure subdued it's Power
and Influence in England, they have never yet totally eradicated its Principles.

Upon these Principles the King claimed an absolute Right to and a perfect Estate in
all the Lands within his Dominions; but how he came by this absolute Right and perfect
Estate is a Mystery which we have never seen unravelled, nor is it our Business or
Design at present to enquire. He granted Parts or Parcels of it to his Friends the
great Men, and they granted lesser Parcels to their Tenants: All therefore derived
their Right and held their Lands, upon these Principles mediately or immediately of
the King; which Mr. Blackstone however calls “in Reality a meer Fiction of our English Tenures.”3

By what Right in Nature and Reason the Christian Princes in Europe claimed the Lands
of Heathen People, upon a Discovery made by any of their Subjects, is equally mysterious:
Such however was the Doctrine universally prevailing when the Lands in America were discovered; but as the People of England upon those Principles held all the
Lands they possessed by Grants from the King, and the King had never granted the Lands
in America to them, it is certain they could have no Sort of Claim to them: Upon the Principles advanced,
the Lordship and Dominion like that of the Lands in England, was in the King solely:
and a Right from thence accrued to him of disposing such Territories under such Tenure
and for such Services to be performed, as the King or Lord thought proper. But how
the Grantees became Subjects of England, that is the Supreme Authority of the Parliament, your Excellency
has not explained to { 334 } us. We conceive that upon the Feudal Principles all Power is in the King; they afford
us no Idea of Parliament. “The Lord was in early Times the Legislator and Judge over all his Feudatories,”
says Judge Blackstone.4 By the Struggles for Liberty in England from the Days of King John to the last happy
Revolution, the Constitution has been gradually changing for the better; and upon
the more rational Principles that all Men by Nature are in a State of Equality in
Respect of Jurisdiction and Dominion, Power in England has been more equally divided.
And thus also in America, though we hold our Lands agreeably to the Feudal Principles
of the King; yet our Predecessors wisely took Care to enter into Compact with the
King that Power here should also be equally divided agreeable to the original fundamental
Principles of the English Constitution, declared in Magna Charta, and other Laws and
Statutes of England, made to confirm them.

Your Excellency says, “you can by no Means concede to us that it is now or was when
the Plantations were first granted the Prerogative of the Kings of England to constitute
a Number of new Governments altogether independent of the Sovereign Authority of the
English Empire.” By the Feudal Principles upon which you say “all the Grants which
have been made of America are founded” “the Constitutions of the Emperor have the
Force of Law.” If our Government be considered as merely Feudatory, we are subject
to the King's absolute Will, and there is no Room for the Authority of Parliament,
as the Sovereign Authority of the British Empire. Upon these Principles, what could
hinder the King's constituting a Number of Independent Governments in America? That
King Charles the First did actually set up a Government in this Colony, conceding
to it Powers of making and executing Laws, without any Reservation to the English
Parliament, of Authority to make future Laws binding therein, is a Fact which your
Excellency has not disproved if you have denied it. Nor have you shewn that the Parliament
or Nation objected to it, from whence we have inferred that it was an acknowledged
Right. And we cannot conceive, why the King has not the same Right to alienate and
dispose of Countries acquired by the Discovery of his Subjects, as he has to “restore
upon a Treaty of Peace Countries which have been acquired in War,” carried on at the
Charge of the Nation; or to “sell and deliver up any Part of his Dominions to a foreign
Prince or State, against the General Sense of the Nation” which is “an Act of Power”
or Prerogative which your Excellency allows. You tell us that “when any new Countries
are discovered by English Subjects, { 335 } according to the general Law and Usage of Nations, they become Part of the State.” The Law of Nations is or ought to be founded on the Law of Reason. It was the saying
of Sir Edwin Sandis, in the great Case of the Union of the Realm of Scotland with
England,5 which is applicable to our present Purpose, that “there being no Precedent for this
Case in the Law, the Law is deficient; and the Law being deficient, Recourse is to
be had to Custom; and Custom being insufficient, we must recur to natural Reason,”
the greatest of all Authorities, which he adds “is the Law of Nations.” The Opinions
therefore, and Determinations of the greatest Sages and Judges of the Law in the Exchequer
Chamber ought not to be considered as decisive or binding in our present Controversy
with your Excellency, any further than they are consonant to natural Reason. If however we were to recur to such Opinions and Determinations we should find very
great Authorities in our Favour, to show that the Statutes of England are not binding
on those who are not represented in Parliament there. The Opinion of Lord Coke that
Ireland was bound by Statutes of England wherein they were named, if compared with his other Writings, appears manifestly to be grounded upon a Supposition,
that Ireland had by an Act of their own, in the Reign of King John, consented to be
thus bound, and upon any other Supposition, this Opinion would be against Reason; for Consent only gives human Laws their Force. We beg Leave, upon what your Excellency has observed,
of the Colony becoming Part of the State, to subjoin the Opinions of several learned
Civilians, as quoted by a very able Lawyer in this Country;6 “Colonies, says Puffendorf, are settled in different Methods. For either the Colony
continues a Part of the Common Wealth it was sent out from; or else is obliged to pay a dutiful Regard
to the Mother Common Wealth, and to be in Readiness to defend and vindicate its Honor,
and so is united [to it] by a Sort of unequal Confederacy; or lastly, is erected into a seperate Common Wealth and assumes the same Rights, with the State it descended from.” And King Tullius [Tullus], as quoted by the same learned Author from Grotius, says “We look upon it to be neither
Truth nor Justice that Mother Cities ought of Necessity and by the Law of Nature to rule over the Colonies.”

Your Excellency has misinterpreted what we have said, “that no Country by the Common
Law, was subject to the Laws or the Parliament but the Realm of England,” and are
pleased to tell us that we have expressed ourselves “Incautiously.” We beg Leave to recite the Words of the Judges of England in the beforementioned
Case to our { 336 } Purpose.7 “If a King go out of England with a Company of his Servants, Allegiance remaineth
among his Subjects and Servants, altho' he be out of his Realm whereto his Laws are confined.” We did not mean to say, as your Excellency would suppose, that “the Common Law prescribes
Limits to the Extent of the Legislative Power,” though we shall always affirm it to
be true of the Law of Reason and natural Equity. Your Excellency thinks you have made
it appear, that “the Colony of Massachusetts-Bay is holden as feudatory of the Imperial
Crown of England;” and therefore you say, “to use the Words of a very great Authority
in a Case in some Respects analogous to it,” being feudatory it necessary follows, that “it is under the Government
of the King's Laws.” Your Excellency has not named this Authority; but we conceive
his Meaning must be, that being Feudatory, it is under the Government of the King's
Laws absolutely; for as we have before said the Feudal System admits of no Idea of the Authority
of Parliament, and this would have been the Case of the Colony but for the Compact
with the King in the Charter.

Your Excellency says, that “Persons thus holding under the Crown of England remain or become Subjects of England;” by which we suppose your Excellency to mean, subject to the
Supreme Authority of Parliament “to all Intents and Purposes as fully as if any of
the Royal Manors, &c. within the Realm had been granted to them upon the like Tenure.”
We apprehend with Submission, your Excellency is Mistaken in supposing that our Allegiance
is due to the Crown of England. Every Man swears Allegiance for himself to his own
King in his Natural Person. “Every Subject is presumed by Law to be Sworn to the King,
which is to his Natural Person,” says Lord Coke. Rep. on Calvins Case.8 “The Allegiance is due to his Natural Body.” And he says “in the Reign of Edward
II. the Spencers, the Father and the Son, to cover the Treason hatched in their Hearts,
invented this damnable and damned Opinion, that Homage and Oath of Allegiance was more by Reason of the King's Crown, that is of his politick
Capacity, than by Reason of the Person of the King; upon which Opinion they infer'd
execrable and detestable Consequents.” The Judges of England, all but one, in the
Case of the Union between Scotland and England,9 declared that “Allegiance followeth the natural Person not the politick;” and “to
prove the Allegiance to be tied to the Body natural of the King, and not to the Body
politick, the Lord Coke cited the Phrases of diverse Statutes, mentioning our natural liege Sovereign.” —If then the Homage and Allegiance is not to the Body politick
of the King, then it is not to him as the Head or any Part of that Legislative Au• { 337 } thority, which your Excellency says “is equally extensive with the Authority of the
Crown throughout every Part of the Dominion;” and your Excellency's Observations thereupon
must fail. The same Judges mention the Allegiance of a Subject to the Kings of England
who is out of the Reach and Extent of the Laws of England; which is perfectly reconcileable
with the Principles of our Ancestors quoted before from your Excellency's History,
but upon your Excellency's Principles appears to us to be an Absurdity. The Judges,
speaking of a Subject, say, “although his Birth was out of the Bounds of the Kingdom
of England, and out of the Reach and Extent of the Laws of England, yet if it were within the Allegiance of the King of England, &c. Normandy, Acquitan, Gascoign, and other Places within the Limits of France,
and consequently out of the Realm or Bounds of the Kingdom of England, were in Subjection
to the Kings of England. And the Judges say, “ Rex et Regnum be not so Relatives, as a King can be King but of one Kingdom, which clearly holdeth
not but that his Kingly Power extending to divers Nations and Kingdoms, all owe him
equal Subjection and are equally born to the Benefit of his Protection, and altho'
he is to govern them by their distinct Laws, yet any one of the People coming into the other is to have the Benefit of the Laws
wheresoever he cometh.” So they are not to be deemed Aliens, as your Excellency in
your Speech supposes in any of the Dominions; all which accords with the Principles
our Ancestors held. “And he is to bear the Burden of Taxes of the Place where he cometh, but living in one or for his Livelihood in one, he is not to be taxed in the other, because Laws ordain Taxes, Impositions and Charges as a Discipline of Subjection
particularized to every particular Nation:” Nothing we think, can be more clear to
our Purpose than this Decision, of Judges, perhaps as learned as ever adorned the
English Nation; or in Favor of America in her present Controversy with the Mother
State.

Your Excellency says, that by our not distinguishing between the Crown of England
and the Kings and Queens of England in their personal or natural Capacities, we have
been led into a fundamental Error. “Upon this very Distinction we have availed ourselves.
We have said that our Ancestors considered the Land which they took Possession of
in America as out of the Bounds of the Kingdom of England, and out of the Reach and
Extent of the Laws of England; and that the King also even in the Act of granting
the Charter, considered the Territory as not within the Realm; that the King had an absolute Right in himself to dispose of the Lands,
and that this was not dis• { 338 } puted by the Nation; nor could the Lands on any solid Grounds be claimed by the Nation,
and therefore our Ancestors received the Lands by Grant from the King, and at the
same Time compacted with him and promised him Homage and Allegiance, not in his publick
or politick but natural Capacity only.—If it be difficult for us to show how the King
acquired a Title to this Country in his natural Capacity, or seperate from his Relation
to his Subjects, which we confess, yet we conceive it will be equally difficult for
your Excellency to show how the Body Politick and Nation of England acquired it. Our
Ancestors supposed it was acquired by neither; and therefore they declared, as we
have before quoted from your History, that saving their actual Purchase from the Natives,
of the Soil, the Dominion, the Lordship, and Sovereignty, they had in the Sight of
God and Man, no Right and Title to what they possessed. How much clearer then in natural
Reason and Equity must our Title be, who hold Estates dearly purchased at the Expence
of our own as well as our Ancestors Labour, and defended by them with Treasure and
Blood.

Your Excellency has been pleased to confirm, rather than deny or confute a Piece of
History which you say we took from an anonimous Pamphlet,10 and by which you “fear we have been too easily misled.” It may be gathered from your
own Declaration and other Authorities besides the anonimous Pamphlet, that the House
of Commons took Exception, not at the King's having made an absolute Grant of the
Territory, but at the Claim of an exclusive Right to the Fishery on the Banks and
Sea-Coast, by Virtue of the Patent. At this you say “the House of Commons was alarmed,
and a Bill was brought in for allowing a Fishery.” And upon this Occasion your Excellency
allows, that “one of the Secretaries of State declared that the Plantations were not
annexed to the Crown, and so were not within the Jurisdiction of Parliament.” If we
should concede to what your Excellency supposes might possibly or “perhaps” be the
Case, that the Secretary made this Declaration “as his own Opinion,” the Event showed
that it was the Opinion of the King too; for it is not to be accounted for upon any
other Principle, that he would have denied his Royal Assent to a Bill formed for no
other Purpose, but to grant his Subjects in England the Privileges of Fishing on the
Sea Coasts in America. The Account published by Sir Ferdinando Gorges himself, of
the Proceedings of Parliament on this Occasion,11 your Excellency thinks will remove all Doubt of the Sense of the Nation and of the
Patentees of this Patent or Charter in 1620. “This Narrative, you say, has all the
Appearance of Truth and Sincerity,” which we do not deny: and to us it carries { 339 } this Conviction with it, that “what was objected” in Parliament was, the exclusive
Claim of Fishing only. His imagining that he had satisfied the House after divers
Attendances, that the Planting a Colony was of much more Consequence than a simple disorderly Course of Fishing, is sufficient for our Conviction. We know that the Nation was at that Time alarmed
with Apprehensions of Monopolies; and if the Patent of New-England was presented by
the two Houses as a Grievance, it did not show, as your Excellency supposes, “the
Sense they then had of their Authority over this new-acquired Territory,” but only
their Sense of the Grievance of a Monopoly of the Sea.

We are happy to hear your Excellency say, that “our Remarks upon and Construction
of the Words not repugnant to the Laws of England, are much the same with those of the Council.” It serves to confirm us in our Opinion,
in what we take to be the most important Matter of Difference between your Excellency
and the two Houses. After saying, that the Statute of 7th and 8th of William and Mary
favors the Construction of the Words as intending such Laws of England as are made
more immediately to respect us, you tell us, that “the Province Agent Mr. Dummer in
his much applauded Defence, says that then a Law of the Plantations may be said to be repugnant to a Law made in Great-Britain,
when it flatly contradicts it so far as the Law made there mentions and relates to
the Plantations.”12 This is plain and obvious to common Sense, and therefore cannot be denied. But if
your Excellency will read a Page or two further in that excellent Defence, you will
see that he mentions this as the Sense of the Phrase, as taken from an Act of Parliament,
rather than as the Sense he would chuse himself to put upon it; and he expresly designs
to shew, in Vindication of the Charter, that in that Sense of the Words, there never
was a Law made in the Plantations repugnant to the Laws of Great-Britain. He gives
another Construction much more likely to be the true Intent of the Words; namely,
“that the Patentees shall not presume under Colour of their particular Charters to
make any Laws inconsistent with the Great Charter and other Laws of England, by which the Lives,
Liberties, and Properties of Englishmen are secured.” This is the Sense in which our Ancestors understood the Words; and therefore they
were unwilling to conform to the Acts of Trade, and disregarded them all till they
made Provision to give them Force in the Colony by a Law of their own; saying, that
“the Laws of England did not reach America: And those Acts were an Invasion of their
Rights, Liberties and Properties,” because they were not “represented in Parliament.”
The Right of being governed only by Laws which were { 340 } made by Persons in whose Election they had a Voice, they looked upon as the Foundation
of English Liberties. By the Compact with the King in the Charter, they were to be
as free in America, as they would have been if they had remained within the Realm;
and therefore they freely asserted that they “were to be governed by Laws made by
themselves and by Officers chosen by themselves.” Mr. Dummer says, “It seems reasonable
enough to think that the Crown,” and he might have added our Ancestors, “intended
by this Injunction to provide for all its Subjects, that they might not be oppressed
by arbitrary Power—but—being still Subjects, they should be protected by the same
mild Laws, and enjoy the same happy Government as if they continued within the Realm”.
And considering the Words of the Charter in this Light, he looks upon them as designed
to be a Fence against Oppression and despotic Power. But the Construction which your
Excellency puts upon the Words, reduce us to a State of Vassallage, and exposes us
to Oppression and despotic Power, whenever a Parliament shall see fit to make Laws
for that Purpose and put them in Execution.

We flatter ourselves that from the large Extracts we have made from your Excellency's
History of the Colony, it appears evidently, that under both Charters it hath been
the Sense of the People and of the Government that they were not under the Jurisdiction
of Parliament. We pray you again to recur to those Quotations and our Observations
upon them: And we wish to have your Excellency's judicious Remarks. When we adduced
that History to prove that the Sentiments of private Persons of Influence, four or five Years after the Restoration, were very different
from what your Excellency apprehended them to be when you delivered your Speech, you
seem to concede to it by telling us “it was, as you take it, from the Principles imbibed in those Times of Anarchy (preceeding the Restoration) that they disputed the Authority
of Parliament;” but you add, “the Government would not venture to dispute it.” We
find in the same History a Quotation from a Letter of Mr. Stoughton, dated 17 Years after the Restoration,13 mentioning “the Country's not taking Notice of the Acts of Navigation to observe them.” And it was, as we take it, after that Time, that the Government declared in a Letter
to their Agents, that they had not submitted to them; and they ventured to “dispute”
the Jurisdiction, asserting that they apprehended the Acts to be an Invasion of the
Rights, Liberties, and Properties of the Subjects of his Majesty in the Colony, they not being represented in Parliament; and that “the Laws of England did not reach America.” It very little avails in Proof that they conceded to the Supreme Authority of Parliament,
their telling { 341 } the Commissioners “that the Act of Navigation had for some Years before been observed
here, that they knew not of its being greatly violated, and that such Laws as appeared
to be against it were repealed.” It may as truly be said now, that the Revenue Acts
are observed by some of the People of this Province; but it cannot be said that the
Government and People of this Province have conceded that the Parliament had Authority
to make such Acts to be observed here. Neither does their Declarations to the Commissioners
that such Laws as appeared to be against the Act of Navigation were repealed, prove
their Concession of the Authority of Parliament, by any Means so much as their making
Provision for giving Force to an Act of Parliament within this Province, by a deliberate
and solemn Act or Law of their own, proves the contrary.

You tell us, that “the Government four or five Years before the Charter was vacated
more explicitly,” that is than by a Conversation with the Commissioners, “acknowledge
the Authority of Parliament, and voted that their Governor should take the Oath required
of him faithfully to do and perform all Matters and Things enjoined him by the Acts
of Trade.” But does this, may it please your Excellency, show their explicit Acknowledgment
of the Authority of Parliament? Does it not rather show directly the contrary? For,
what need could there be for their Vote or Authority to require him to take the Oath
already required of him by the Act of Parliament, unless both he and they judged that
an Act of Parliament was not of Force sufficient to bind him to take such Oath? We
do not deny, but on the contrary are fully persuaded that your Excellency's Principles
in Government are still the same with what they appear to be in the History; for you
there say, that “the passing the Law plainly shows the wrong Sense they had of the
Relation they stood in to England.” But we are from hence convinced that your Excellency
when you wrote the History was of our Mind in this Respect, that our Ancestors in
passing the Law discovered their Opinion that they were without the Jurisdiction of
Parliament: For it was upon this Principle alone that they shewed the wrong Sense
they had in your Excellency's Opinion, of the Relation they stood in to England.

Your Excellency in your second Speech condescends to point out to us the Acts and
Doings of the General Assembly which relates to Acts of Parliament, which you think
“demonstrates that they have been acknowledged by the Assembly or submitted to by
the People:” Neither of which in our Opinion shows that it was the Sense of the Nation,
and our Predecessors when they first took Possession of this { 342 } Plantation or Colony by a Grant and Charter from the Crown, that they were to remain
subject to the Supreme Authority of the English Parliament.

Your Excellency seems chiefly to rely upon our Ancestors, after the Revolution “proclaiming
King William and Queen Mary in the Room of King James,” and taking the Oaths to them,
“the Alteration of the Form of Oaths from Time to Time,” and finally “the Establishment
of the Form which every one of us has complied with, as the Charter in express Terms
requires and makes our Duty.” We do not know that it has ever been a Point in Dispute
whether the Kings of England were ipso facto Kings in and over this Colony or Province,
the Compact was made between King Charles the First, his Heirs and Successors, and
the Governor and Company, their Heirs and Successors. It is easy upon this Principle
to account for the Acknowledgment and Submission of King William and Queen Mary as
Successors of Charles the First, in the Room of King James. Besides it is to be considered,
that the People in the Colony as well as in England had suffered under the Tyrant James, by which he had alike forfeited his Right to reign over both. There had been
a Revolution here as well as in England. The Eyes of the People here were upon William
and Mary, and the News of their being proclaimed in England was as your Excellency's
History tells us, “the most joyful News ever received in New-England.” And if they
were not proclaimed here “by Virtue of an Act of the Colony,” it was, as we think
may be concluded from the Tenor of your History, with the general or universal Consent
of the People as apparently as if “such Act had passed.” It is Consent alone, that makes any human Laws binding; and as a learned Author observes, a purely voluntary Submission to an Act, because it is highly in our Favor and for our Benefit, is in
all Equity and Justice to be deemed as not at all proceeding from the Right we include in the Legislators, that they thereby obtain an Authority over us, and that ever hereafter we must obey them of Duty. We would observe that one of the first Acts of the General Assembly of this Province
since the present Charter, was an Act requiring the taking the Oaths mentioned in
an Act of Parliament, to which you refer us: For what Purpose was this Act of the
Assembly passed, if it was the Sense of the Legislators that the Act of Parliament
was in Force in the Province. And at the same Time another Act was made for the Establishment
of other Oaths necessary to be taken; both which Acts have the Royal Sanction, and
are now in Force. Your Excellency says, that when the Colony applied to King William
for a second Charter, { 343 } they knew the Oath the King had taken, which was to govern them according to the Statutes
in Parliament, and (which your Excellency here omits) the Laws and Customs of the same. By the Laws and Customs of Parliament, the People of England freely debate and consent
to such Statutes as are made by themselves or their chosen Representatives. This is
a Law or Custom which all Mankind may justly challenge as their inherent Right. According to this Law the King has an undoubted Right to govern us. Your Excellency
upon Recollection surely will not infer from hence, that it was the Sense of our Predecessors
that there was to remain a Supremacy in the English Parliament, or a full Power and
Authority to make Laws binding upon us in all Cases whatever, in that Parliament where
we cannot debate and deliberate upon the Necessity or Expediency of any Law, and consequently without our Consent,
and as it may probably happen destructive of the first Law of Society, the Good of
the Whole. You tell us that “after the Assumption of all the Powers of Government,
by Virtue of the new Charter, an Act passed for the reviving for a limited Time all
the local Laws of the Massachusetts-Bay and New-Plymouth respectively, not repugnant
to the Laws of England. And at the same Session an Act passed establishing Naval Officers,
that all undue Trading contrary to an Act of Parliament—may be prevented.” Among the
Acts that were then revived we may reasonably suppose was that whereby Provision was
made to give Force to this Act of Parliament in the Province. The Establishment therefore
of the Naval Officers was to aid the Execution of an Act of Parliament; for the Observance
of which within the Colony, the Assembly had before made Provision, after free Debates,
with their own Consent and by their own Act.

The Act of Parliament passed in 1741, for putting an End to several unwarrantable
Schemes,14 mentioned by your Excellency, was designed for the general Good, and if the Validity
of it was not disputed, it cannot be urged as a Concession of the Supreme Authority,
to make Laws binding on us in all Cases whatever. But if the Design of it was for the general Benefit of the Province, it was in one
Respect at least greatly complained of by the Persons more immediately affected by
it; and to remedy the Inconvenience, the Legislative of this Province pass'd an Act,
directly militating with it;15 which is the strongest Evidence, that altho' they may have submitted sub silentio to some Acts of Parliament that they conceived might operate for their Benefit, they
did not conceive themselves bound by any of its Acts which they judged would operate
to the Injury even of Individuals.

Your Excellency has not thought proper to attempt to confute the Reasoning of a learned
Writer on the Laws of Nature and Nations, quoted by us on this Occasion,16 to shew that the Authority of the Legislature does not extend so far as the Fundamentals
of the Constitution. We are unhappy in not having your Remarks upon the Reasoning
of that great Man; and until it is confuted, we shall remain of the Opinion, that
the Fundamentals of the Constitution being excepted from the Commission of the Legislators,
none of the Acts or Doings of the General Assembly, however deliberate and solemn,
could avail to change them, if the People have not in very express Terms given them
the Power to do it; and that much less ought their Acts and Doings however numerous,
which barely refer to Acts of Parliament made expresly to relate [to] us, to be taken as an Acknowledgment that we are subject to the Supreme Authority
of Parliament.

We shall sum up our own Sentiments in the Words of that learned Writer Mr. Hooker,
in his Ecclesiastical Policy, as quoted by Mr. Locke,17 “The lawful Power of making Laws to command whole political Societies of Men, belonging
so properly to the same intire Societies, that for any Prince or Potentate of what
kind soever, to exercise the same of himself, and not from express Commission immediately
and personally received from God, is no better than mere Tyranny. Laws therefore they are not which publick Approbation hath not made so, for Laws human of what kind soever are available by Consent.” “Since
Men naturally have no full and perfect Power to command whole politick Multitudes
of Men, therefore, utterly without our Consent we could in such Sort be at no Man's
Commandment living. And to be commanded we do not consent when that Society whereof
we be a Part, hath at any Time before consented.” We think your Excellency has not
proved, either that the Colony is a Part of the politick Society of England, or that
it has ever consented that the Parliament of England or Great-Britain should make
Laws binding upon us in all Cases whatever, whether made expresly to refer to us or
not.

We cannot help before we conclude, expressing our great Concern, that your Excellency
has thus repeatedly, in a Manner insisted upon our free Sentiments on Matters of so
delicate a Nature, and weighty Importance. The Question appears to us to be no other,
than Whether we are the Subjects of absolute unlimitted Power, or of a free Government
formed on the Principles of the English Constitution. If your Excellency's Doctrine
be true, the People of this Province hold their Lands of the Crown and People of England,
and their Lives, Liberties { 345 } and Properties are at their Disposal; and that even by Compact and their own Consent.
They are subject to the King as the Head alterius Populi of another People, in whose Legislative they have no Voice or Interest. They are
indeed said to have a Constitution and a Legislative of their own, but your Excellency
has explained it into a mere Phantom; limitted, controuled, superceded and nullified
at the Will of another. Is this the Constitution which so charmed our Ancestors, that
as your Excellency has informed us, they kept a Day of solemn Thanksgiving to Almighty
God when they received it? and were they Men of so little Discernment, such Children
in Understanding, as to please themselves with the Imagination that they were blessed
with the same Rights and Liberties which natural-born Subjects in England enjoyed?
when at the same Time they had fully consented to be ruled and ordered by a Legislative
a Thousand Leagues distant from them, which cannot be supposed to be sufficiently
acquainted with their Circumstances, if concerned for their Interest, and in which
they cannot be in any Sense represented.

1. William Robertson. The quotation given here, “a State . . . defective,” is actually
a combination of phrases used by Robertson in The History of the Reign of Emperor Charles V, 1:12, 60.

2. The remainder of this paragraph, after the quotation from Robertson, draws heavily
on two sections of JA's “A Dissertation on the Canon and the Feudal Law.” The quotations from Lord Kames
(“A Constitution so contradictory”) and from Rousseau (“a very celebrated writer”)
are the same ones used in the closing paragraph of No. 2 of that series (“Dissertation”
[May-Oct. 1765], No. IV., above). Other sections in this paragraph within quotation marks are close paraphrases
of the fifth and sixth paragraphs of No. 1 in the same series (same, No. III, above).

6. James Otis in The Rights of the British Colonies Asserted and Proved, Boston, 1764. For an analysis of Otis' pamphlet, see Bailyn, ed., Pamphlets, 1:409–418. The passages quoted here and below appear at same, p. 437, with exact
citations to Pufendorf and Grotius.

7. That is, the Case of the Union of Scotland and England, or Calvin's Case. The quotation
appears in Moore, Cases, p. 798.

8. Part 7 of the various editions of Sir Edward Coke, Reports, p. 10, 11–12.

9. The quotations which comprise the remainder of the paragraph are drawn from Moore,
Cases, p. 798–800, 805.

10. In his message of 16 Feb., Hutchinson made this reply to the House's remarks on the
status of “any new Countries . . . discovered by English Subjects” : “[T]hat it is
now, or was when the Plantations were first granted, the Prerogative of the Kings
of England to alienate such Territories from the Crown, or to constitute a Number
of new Governments altogether independent of the Sovereign Legislative Authority of
the English Empire, I can by no Means concede to you. I have never seen any better
Authority to support such an Opinion than an anonimous Pamphlet by which I fear you
have too { 346 } easily been misled, for I shall presently shew you that the Declarations of King James
the First, and of King Charles the First, admitting they are truly related by the
Author of this Pamphlet, ought to have no Weight with you” (Mass., House Jour., 1772–1773, p. 231). For the apparent source of the House arguments on this subject,
see No. I, note 2, above.

11. Gorges' “Account” appears in his A Briefe Narration of the Originall Undertakings of the Advancement of Plantations
into the Parts of America, London, 1658 (reprinted in MHS, Colls., 3d ser., 6 [1837]: 45–93).

12. This passage appears in Jeremiah Dummer (1681–1739), A Defence of the New-England Charters, London, 1721, p. 34; other passages quoted from Dummer in this paragraph appear
at p. 34–36.

17. These passages are taken from the second of John Locke's Two Treatises of Government, “An Essay Concerning the True Original, Extant, and End of Civil Government,” ch.
11. In the 5th edition, London, 1728, this passage appears in a note at p. 231–232.
In the sections which follow, some phrases of Locke's have been incorporated into
the passages which Locke quoted from Richard Hooker (1554?–1600), Lawes of Ecclesiasticall Politie.

Docno: ADMS-06-01-02-0098

Author: Adams, John

Author: Quincy, Josiah

Author: Palmer, Joseph

Recipient: Braintree, town of

Date: 1773-02-05

Petition to the General Court for Setting off “The Farms” From Dorchester to Braintree

[dateline] Braintree February 5th. 1773

Province of Massachusets Bay

To his Excellency Thomas Hutchinson Esqr. the Honorable his Majesty's Council and
the honble. House of Representatives in General Court assembled February A.D. 1773.

The Petition of Josiah Quincy John Adams and Joseph Palmer in Behalf of themselves
and the North Precinct in Braintree.

Humbly sheweth. That there is a certain Tract of Land in the Town of Dorchester lying
on the south side of Neponset Rive[r] adjoining to said Precinct and bounded as follows,

Northwesterly by said River Southwesterly, by Sagam[ore]1 Creek (so called) to the Angle of meeting between the Towns of Dorchester Milton
and Braintree South Easterly, by the Boundary Line between Dorchester and Braintree
North Easterly by Billings's Creek (so called) towards the Head thereof to the dividing
Line between Oliver Billings and Others and by said Line running about So. East to
Braintree Bay.

That the Lands within the Limits aforesaid are owned as follows, vizt. by John Billings,
Thomas Wells, Eliza. Glover, Ebenr. Glover { 347 } Oliver Billings Josiah Glover and Ezra Glover who are Inhabitants and Proprietors
thereof.

That Jonathan Rawson, Edmund Billings, Nathl. Glover, and William Glover, of Braintree,
(and a few Persons, living in Milton and Dorchester, Owners of an inconsiderable Quantity
of Salt Marsh) are Proprietors and not Inhabitants.

That most of the Inhabitants and Proprietors first named have Pews in the Meeting
House in said Precinct, and all of them and their Families have usually attended the
publick Worship therein excepting Oliver Billings.

That in the year 1771. A Number of them prefer'd a Petition to the Town of Braintree
desiring their Concurrence in a Petition they were resolved to prefer to the great
and general Court that They and their Estates might be set off from Dorchester and
annex'd to Braintree declaring their promise to pursue the same to Effect so far as
should be in their Power: an authenticated Copy whereof is herewith presented.2

That, in pursuance of the above Resolution and Promise a Petition sign'd by all the
Persons abovenamed excepting two or three inconsiderable Proprietors was prefer'd
praying for the Reasons therein declared that they and their Estates within the Limits
aforesaid might be set off from Dorchester and annexed to the Town of Braintree which
has been under your Excellency and Honour's Consideration.3

That The Town of Dorchester at a Meeting legally assembled in the Year 1771 in order
to diswade the said Petitioners from their Purpose and as a Motive to retract their
Petition did remit to them their ministerial and School Taxes: And at another Town
Meeting in the year 1772 passed the following Vote vizt. “Voted to allow the Inhabitants
of the Farm's (so called) or any Part of them that will signify to the Courts Committee
under their Hands that they are willing to stay in the Town, what they shall be assessed
to the Ministry and Schools not only this Year but also for the Time to come so long
as they remain in the The Town.”

That in Consequence of the foregoing Votes and other influencing Motives all the Petitioners
aforesd. forgetting their Resolution and Promise abovementiond. excepting John Billings
and Thos. Wells did sign and prefer a Petition to your Excellency and Honours wherein
they retracted their former Request.4

Your Petitioners, therefore, beg Leave to submit the Premises to your Excellency and
Honours Consideration together with their Prayer and humble Hope that you will be
pleased to order the Lands { 348 } within the Limits aforesaid, and the Inhabitants thereon to be set off from Dorchester
and annexed to the North Precinct in Braintree, so, as that their ministerial Taxes
may be applyed to the Support of the publick Worship of God therein; and their School
Taxes to the Education of their Children. Or otherwise relieve your Petitioners in
any other manner though variant from the foregoing Prayer, as to your Excellency and
Honours in your great Wisdom shall seem meet.5 And your Petitioners as in Duty bound shall ever pray &c.

[signed] Josiah Quincy

[signed] John Adams

[signed] J. Palmer

[dateline] Braintree North Preceinct Febr. 5th 1773

The foregoing Petition was rece'd and accepted by this preceinct at their Meeting
Legally Assembled this Day and committed to Josiah Quincey Esqr. Chairman of the comtee.
apointed and Impowerd to present the Same,

In Council June 3. 1773. Read, together with the an[swer t]hereto and orderd that Saml. Dexter and Walter Sp[ooner] Esqrs. with such as shall be joyned by the H[onb]le. House by a Committee to take the same into Consideration. Hear the Parties, and
Report thereon. Sent down for Concurrence.

[signed] Jno. Cotton D. Secy.

In the House of Representatives June 14 1773. Read and Concurrd and Mr. Payne Cap Bacon and Coll Leonard are joynd.

[signed] T Cushing Spkr.

Petition of the north Precinct in Braintree June 25. 1773 In the House of Representatives Feby. 19 1773 Orderd. that the petitioners notify the Inhabitants of the Town of Dorchester (by
Leaving an attested copy of this petition and order with the Clerk of said Town) to
shew cause on the second Thursday of the next Session of the General Court why the
prayer thereof should not be granted. Sent up for Concurrence. T. Cushing Spkr. In
Council Feby. 19th. 1773. Read and Concurred.

2. This petition was read at the Braintree town meeting of 4 March 1771. The MS has not been found, but the town records describe it as “setting forth a resolution
that they [the petitioners] have come into to Petition the Genll. Court that they and their estates may be sett
of to Braintree Praying this Town { 349 } in case they should be annexed to Braintree that they may in their own persons be
excepted from serving in the office of Constable &c.” On hearing the petition, the
town voted that its signers “shall be exempted from serving in the office of a Constable,
Provided they be annexed to Braintree as is above proposed” (Braintree Town Records, p. 431).

3. This petition, dated 3 April 1771, was signed by Edmund and John Billings; Ebenezer,
Ezra, Josiah, Oliver, and William Glover; and Jonathan Rawson. It was read in the
Council on 13 June 1771. The General Court ordered that the town of Dorchester be
notified of the action and be required to show cause why the request not be granted.
On 15 April 1772 Dorchester's reply and the 1771 petition were referred to a joint
committee. On 25 June 1772 the same documents were read again and referred to a new
joint committee (M-Ar:Legislative Council Records, 29:43–44, 158–159, 300–301; the petition of 3 April
1771 is in M-Ar:vol. 14:619).

4. This petition has not been found. However, the petition of 1771 was revived and recommitted
in the Council on 12 Jan. 1773. When this committee made its report on 4 Feb., the
Council gave leave to the original petitioners to withdraw their request, doubtless
in view of a second petition drawn up after the concessions from Dorchester (M-Ar: Legislative Council Records, 29:378, 453).

5. This petition of 5 Feb. was first considered by the House on 11 Feb. (Mass., House Jour., 1772–1773, p. 223). Eight days later, the House, with the Council's concurrence,
directed that the petitioners notify the town of Dorchester of their application and
postponed consideration of the matter until the General Court convened after the May
elections (same, p. 246; M-Ar: Legislative Council Records, 29:498–499). On 3 June the Council heard Dorchester's
reply to the petition and named a joint committee to consider the problem, with the
House concurring on 14 June (Mass., House Jour., 1773–1774, P. 54). On 25 June the Council voted to accept the committee's recommendation
that the petition be disallowed, and the petition was sent down to the House (M-Ar:Legislative Council Records, 30:83; Mass., House Jour., 1773–1774, p. 86). The House Journal records no action on the recommendation, and the question apparently was not revived
for nearly two decades. “The Farms” remained part of Dorchester until 1791, when the
state government accepted another petition from the region, this time a joint request
from “The Farms” and the North Precinct of Braintree that they be “set off” from Braintree,
the new jurisdiction becoming the Town of Quincy (Pattee, Old Braintree and Quincy, p. 57–62 and notes). At stake for Braintree in 1773 was the securing of taxpayers
who could help support the schools and the church. The loss of the North Precinct,
where the Adamses lived, and the joining to it “The Farms” to form the new town of
Quincy was an ironic outcome for Braintree.

6. This notation and those which follow are entered at the foot of the petition by the
several officials whose signatures accompany them.

Docno: ADMS-06-01-02-0099

Author: Adams, John

Author: Boston Town Meeting

Date: 1773-05-05

Petition to Have Boston Accept Pleasant Street

Boston, ante 5 May 1773. MS (MB). John Adams was among the 52 signers who sought to have Pleasant Street “Accepted
of and recorded as a Town street as is Usual.” The petition was approved by the Boston
town meeting on 5 May 1773 (Boston Record Commissioners, 18th Report, p. 134). Pleasant Street ran south and southeastward from the southwest corner of
the Common to join Orange Street, the main road { 350 } leading to the Neck (Lester J. Cappon, Barbara Bartz Petchenik, and John Hamilton
Long, eds., Atlas of Early American History, Princeton, 1976, p. 9).

Elected Council Members Negatived by Governor Thomas Hutchinson

Boston, 26 May 1773. MS (M-Ar:vol. 50:449–450. Of the 24 elected by joint ballot of the House of Representatives
and outgoing Council, John Adams was one of three rejected by Hutchinson. The others
were Jerathmeel Bowers and William Phillips.

From Joseph Hawley

The letter inclosed herewith contains My Answer to the young Gentn. you was pleased
recommend Me to as an Assistant in his Study of the Law and it is in the affirmative.1

I have heard Nothing of our Publick Affairs since I left Boston.2 I have only to intreat, That, as I know you Sir can do Much to influence them Nothing
be done through Strife or vain glory—and that in all cases which will possibly admit
of it, great Consideration and thorough discussion precede action i.e. in other Words
that We look before We leap.

[salute] I am Sir with the Sincerest respect and greatest esteem Yr. Most Obedt. Humble Sert,

[signed] Joseph Hawley

RC (Adams Papers); addressed: “Mr. Adams.” Docketed in an unidentified hand, incorporating the address:
“Major Hawley to Mr. Adams August 30. 1773 consenting to take Levy Lincoln into his
office.”

1. Hawley's enclosed letter to Levi Lincoln of Hingham (1749–1820) has not been found. Lincoln, Harvard 1772, spent a year as clerk in the office of
Daniel Farnham of Newburyport before applying to Hawley. Later in his distinguished
career, Lincoln became Attorney General of the United States (DAB; Waldo Lincoln, History of the Lincoln Family, Worcester, Mass., 1923, p. 157).

2. Hawley represented Northampton in the House in 1773–1774. Although the first session
was prorogued on 29 June 1773, Hawley's last committee appointment was recorded on
18 June, and it is likely he did not attend much later than that date (Mass., House Jour., 1773–1774, p. 66).

Genealogical Note

[dateline] Boston August 7 1773

Mr Henry Adams before the year 1640, I cant Say how long before, came from Bristol
in England, with Eight Sons, and fixed himself at Braintree, in an House nearly opposite
to the present Parsonage House of the Church of England, near the late Dr and the
present Major Millers—being a Maltster by Trade he Set up a Malt House there upon
a Piece of Land between the Brook on the North a Rivulet that crosses the Road on
the East, the Road on the South, which Malt house is now Standing and has been in
Possn of the Family, to this day. One of the Eight Sons went back to England, the
other Seven remained in this Country, and from one or another of them are descended
the Multitude who bear the Name of Adams in Boston, Braintree Medfield, Chelmesford,
&c &c &c, one of the Eight Sons was named John. He lived upon the Place with his father.
He had issue among others Samuel who was afterwards a Justice of the Peace and a Representative
of Boston, who was the Father of the intrepid Patriot of the Same Name, who for a
Course of Years has been Clerk of the House of Representatives and a Member for Boston,
and Joseph, who lived, about a Mile out of the public Road near the Common where Several
of his Posterity remain,—This Joseph was the Father of John Adams who lived and died
near the foot of Pens hill, and left his two Houses and Estate there to his two Sons
John, and Peter Boylstone, who are now living.1

[October 25th. 1764 John Adams the son above mentioned was married to Abigail Smith

July 14th. 1765 Abigail Adams the daughter of John Adams and Abigail his wife was
born and (it being Sunday) was baptized in the afternoon by Mr. Smith at Braintree.

July 11th. 1767. John Quincy Adams son of John Adams and Abigail his wife was born
and it being Saturday was baptized next day by Mr. Wibert at Braintree. The childs
Great Grandfather for whom he was named was dying when the child was christened.2

December 28. 1768 Susanna daughter of the above John and Abigail was born (Wednesday)
at Boston and the next Sabbath was baptized 1st. January 1769, by Dr. Cooper. Died
Feby. 4th. 1770.

May 29. 1770 Charles son of said John and Abigail was born Thursday3 morning at Boston and was baptized by Dr. Cooper the next Sunday.

Sept. 15. 1772 Thomas Boylston Adams was born at Braintree { 352 } and Christened the next Sunday by Mr. Wibert. The childs great, great Grandfather
was of the name of Thomas Boylston and built the Old house at Brooklyne where my mother
was born; My mother had also an Uncle of the same name The father of the late Nich.
Boylston Esq. and the present Thomas Boylston. Merchant.]

MS (MB). According to a notation made in 1819 by JQA on a copy of this lineage in an unknown hand, JA wrote the account here printed “in a blank page of Willard's Body of Divinity” (Adams Papers, Microfilms, Reel No. 603). The slight stain on the MS and the size and type of paper suggest that it probably was once a blank page in
JA's copy of Samuel Willard, A Cormpleat Body of Divinity, now in the Boston Public Library. The continuation of the account, printed here
in brackets, is taken from that part of the copy on which JQA noted “Entries made by my father.” JQA noted that his grandfather, Deacon John, had also made entries on another blank page,
and JQA himself continued the entries. Except in copies, none of these other entries is known
to survive.

1. JA confused the names of his great-grandfather and great-great-uncle and omitted one
generation of the family lineage. Joseph (1626–1694), not John (1622–1706), was the son of Henry Adams who remained in Braintree with
their father. Joseph's son Capt. John Adams (1661–1702) was the grandfather of the patriot Samuel Adams. Joseph's elder son, Joseph (1654–1737), was the father of JA's father, Deacon John Adams (1690–1761). For a more detailed and accurate account of the Adams line in Massachusetts, see
JA, Diary and Autobiography, 3:254–255 and notes.

From Catharine Macaulay

I was very sorry to find by your favor of the 19 of Aprill1 that you had so many good reasons to allege for the Depriveing me thus long of the
pleasure of your correspondence.

We simpathise so much in mind and Body that you cannot think me guilty of compliment
when I say that I was much concerned at the account you gave me of the state of your
health and the situation of your public affaires. There are some matters of importance
which have come to light since the reception of your letter which will be I hope leading
steps to the amendment if not the thorough reformation of that unjust system of policy
which has too long prevailed in your Government and filled the hearts of your Patriots
with melencholly apprehenssions for the future state of America.

I have just received intelligence that Governor Hutchinson has desired leave to resign.2 The wicked have fallen into the pit they have { 353 } digged for others. May Hutchinsons example be a warning to the rest of your Countrymen,
for if American liberty is destroyed the Destruction will be effected by the Vipers
which she nourishes in her own Bosom. Your controversy with General Bratle afforded
me a good deal of amusement. I am fond of the subject when treated with any degree
of perspicuity.3

Plausible argument has a great influence on the judgement of the vulgar and on that
consideration had you not received a challenge the pains you took in the controversy
was undoubtedly well bestowed.

In the next Letter which I have the honor of receiveing from you I hope to hear that
the appearance of a renovation of the union betwixt the Colonies is become a reality.
It is the Jealousies and Devissions which has always subsisted among you that has
encouraged Ministers to attempt those innovations which if submitted to naturally
lead to the subverssion of your Liberties.

1. Presumably at the suggestion of John Horne Tooke, the Society of Supporters of the
Bill of Rights had been started in 1769 while John Wilkes was in prison to raise money
for his debts and election expenses (Tooke in DNB). By 1771, the society, split over the issue of raising money for Wilkes, had announced
a reform program that included reducing the length of life of Parliaments, more nearly
equal representation, and decreasing the number of placemen in the Commons (J. R.
Pole, Political Representation in England and the Origins of the American Republic, N.Y., 1966, p. 428–429). No record has been found to show whether JA contributed money to the cause.

2. On the verso appears the following letter, endorsed at the foot, “rec'd. Jan. 25 1774”:

[dateline] London, 15th Octor. 1773

[salute] Sir

I have the honor of transmitting you the inclosed Resolution of the Society of the
Bill of Rights which was unanimous.

It affords me great pleasure to find so very respectable a Gentleman of America, disposed
to unite with the Friends of Liberty in England for our mutual safety and Defence.

I am most respectfully your very Obedient Humble Servant,

[signed] Stephen Sayre

Sayre, whom JA may have met during his visits to New England in 1766 and 1772, credited himself
with being the “chief founder” of the Supporters, but he tended greatly to exaggerate
his accomplishments and importance (Sibley-Shipton, Harvard Graduates, 14:207). For a brief sketch of Sayre and bibliographic references for his career,
see Adams Family Correspondence, 4:264–265, note.

2. This reference is not to Gov. Hutchinson's brother, Foster, but to his late wife's
brother-in-law, Lt. Gov. Andrew Oliver (1706–1774). Oliver was first charged with “perjury” by his political enemies for statements
in his depositions concerning the debates of the Council on the Boston Massacre, 1770.
Oliver's good faith was impugned again, in 1773, when his letters to Thomas Whately
were published in the province. Disclosure of the “Whately letters” led the House
of Representatives to petition the King on 23 June for the removal of Hutchinson and
Oliver (Sibley-Shipton, Harvard Graduates, 7:405–411; Mass., House Jour., 1773–1774, p. 75). For a detailed analysis of the impact of the Hutchinson-Oliver
correspondence with Whately, see Bailyn, Thomas Hutchinson, p. 223–257; for JA's contemporary comments on the letters, see Diary and Autobiography, 2:79–80, and note at 80–81.